NC, R. v

J U D G M E N T (Approved)

1. MRS JUSTICE PATTERSON: On 15th June 2016 this court gave judgment in a reference by the Attorney General under section 36 of the Criminal Justice Act 1988, R v "NC", in respect of sentences passed at the Crown Court in Guildford on 18th March 2016, when the applicant had pleaded guilty to three counts of sexual assault on a child under the age of 13 and a further count of causing a child to watch a sexual act. The full facts are set out in the judgment at [2016] EWCA Crim 1141. Accordingly, we do not repeat them here, other than to say that they set the context for the instant appeal.

2. An important part of the sentences passed on the applicant was the imposition of a Sexual Harm Prevention Order ("SHPO") for a period of ten years.

3. At the June hearing this court considered applications for leave to appeal the SHPO imposed at the sentencing hearing on 18th March 2016 and an application to extend time in which to bring an appeal against that order. The court adjourned both applications and gave directions for service of a respondent's notice focused entirely on the SHPO. Subject to service of such notice, the court determined there was no requirement for the respondent to attend the hearing of the adjourned applications. The directions have been complied with and, as we said in argument, we grant leave on both of them. In fact, the respondent has attended today's hearing and we are grateful for that.

4. Complaint is made by the applicant about the schedule of prohibitions attached to the SHPO. They read:

"The defendant is prohibited from:

(1) Using any device or computer capable of accessing the internet unless:

(a) It has been installed with monitoring software that is approved and monitored by the Police Force in the area in which you reside unless such software is unavailable and this is confirmed in writing by the ViSOR officers responsible for the monitoring of the defendant; and

(b) It has the capacity to retain and display the history of internet use, and you do not delete such history; and

(c) You make the computer/device immediately available on request for inspection by a Police officer, or police staff employee.

This prohibition shall not apply to a computer at your place of work, Job Centre Plus, Public Library, educational establishment or other such place, provided that it has been notified and approved in writing by a Police officer responsible for monitoring you, prior to use.

(2) Interfering with the normal running of any such computer monitoring software.

(3) Purchasing, downloading or activating any evidence elimination software on any computer or device in your possession.

(4) Activating any encryption software, and/or installing any virtual machine on any device or computer such as VM Ware or Virtual box, and/or in any way bypassing any monitoring software installed under prohibition 1(a) above.

(5) Using or activating any function of any software which prevents a computer or device from retaining and/or displaying the history of internet use, for example using 'incognito' mode or private browsing.

(6) Allowing any person under the age of 16 into or to remain in his home, any other premises or private vehicle under his control unless such child is accompanied by their parent or legal guardian, who is aware of his conviction and this order.

(7) Being in the home of any person under the age of 16, if that person is present, unless in the presence of that child's parent or legal guardian who is aware of his convictions and this order.

(8) Having contact with any person under the age of 16, either in person, on the internet, or by any other means, unless that contact is unavoidable in the ordinary course of life without the permission of that person's parent or guardian who is aware of this conviction and order.

(9) Undertaking any activity, whether paid, voluntary or recreational, which by its nature is likely to bring him into supervisory contact with a child or young person under the age of 16 years."

5. No complaint is about the ten year duration of the SHPO.

6. The applicant contends:

(i) that the first five of the prohibitions are unnecessary in that none of the applicant's offences involved the use of a computer or the internet;

(ii) that prohibitions (6), (7) and (8) are oppressive and disproportionate: it is accepted that the spirit of the prohibitions which prevent unsupervised access or communication with a person under 16 is appropriate, but it is contended that their formulation, in particular that at (6), will mean that the applicant cannot be alone with his younger daughter;

(iii) that prohibition (9) is unnecessary as the applicant has never worked with children and he will be on the banned list under the Safeguarding Vulnerable Groups Act 2006 as a result of his conviction.

7. Since 8th March 2015 the court may make an SHPO where section 103A(2) or (3) of the Sexual Offences Act 2003 applies. Section 103A(2) reads, where relevant:

"This subsection applies to the defendant where -

(a) the court deals with the defendant in respect of -

(i) an offence listed in Schedule 3 or 5 ...

and

(b) the court is satisfied that it is necessary to make a sexual harm prevention order, for the purpose of -

(i) protecting the public or any particular members of the public from sexual harm from the defendant ..."

For the purposes of section 103A(2):

"... 'Sexual harm' from a person means physical or psychological harm caused -

(a) by a person committing one or more offences listed in Schedule 3 ..."

Section 103A(4) reads:

"The only prohibitions that may be included in a sexual harm prevention order are those necessary for the purpose of -

(a) protecting the public or any particular members of the public from sexual harm from the defendant ..."

8. Thus, there is a statutory test of necessity for the imposition of an SHPO, as there is also the test of necessity for the inclusion of any prohibition on the SHPO, so that the public at large, or any particular member of it, is protected from sexual harm from a defendant.

9. Both the applicant and the respondent referred to the case of R v Smith[2011] EWCA Crim 1772, in which this court dealt with four cases with questions arising from sexual offences prevention orders ("SOPOs"). Whilst the statutory provisions for the imposition of SOPOs were different, in that such an order could only have been made to protect the public or a particular member of it from serious sexual harm, we do consider that, with slight amendment, the questions posed in paragraph 8 of Smith remain relevant to the sentencing court considering the imposition of an SHPO. Those are: (i) is the making of an order necessary to protect the public from sexual harm through the commission of scheduled offences?; (ii) if some order is necessary, are the terms imposed nevertheless oppressive?; (iii) overall, are the terms proportionate?

10. We endorse the observations of Hughes LJ (as he then was) at paragraph 26 of Smith as to the prior service of a draft order preferably at least two clear days before the hearing, and in any event not at the hearing. The reason for that is so that proper thought and consideration can be given to the draft order and amendments made, if required, by the parties and the judge. It is our understanding that in this case the SHPO was produced at the hearing, which was not a satisfactory way of proceeding.

11. We turn now to deal with the specific criticisms made of the order in this case.

Prohibitions (1) to (5)

12. These all relate to devices including computers capable of accessing the internet. Count 3 on the indictment involved the applicant instructing his nephew, "C", to search C's Wii device to access YouTube for a specific video and then to watch it. The offence therefore did involve some familiarity with and use of the internet. Assessment also by the social services indicates that the applicant has a familiarity with the internet, albeit basic. Accordingly, we reject the submission that computers do not figure at all in this case. An SHPO was necessary to impose restrictions on devices with access to the internet to protect the public from sexual harm from the applicant. Further, prohibitions do not place restrictions on the use of relevant devices by other members of the applicant's family.

13. In considering the prohibitions that were imposed upon the order, we bear in mind that the position with regard to internet use has developed since the judgment in the case of Smith. The prohibitions (1) to (5) were approved by the judge in this case and we can see nothing objectionable in the circumstances about the prohibitions imposed.

Prohibitions (6) to (8)

14. Through the applicant's guilty pleas, he accepted that he sexually assaulted two young girls in his own home, one of whom was a member of his extended family and the other a friend of his daughter. It is accepted by the applicant that there is a necessity for the type of prohibition imposed in relation to contact with children under the age of 16. The real issue is whether the prohibitions are too widely drawn as they would include the applicant's younger daughter, who is under the age of 16.

15. As part of this hearing, Mr Hallowes, for the applicant, has produced an alternative draft in relation in particular to prohibition (8); his submission being that prohibitions (6) and (7) are not necessary. In that revised wording it is proposed that the applicant should not have any unsupervised contact or communication with any child under the age of 16 other than such as is inadvertent and not reasonably avoidable in the course of lawful daily life or, secondly, with the consent of the child's parent or guardian (who has knowledge of his convictions) and with the express approval of the social services for the area.

16. We conclude that that alternative is still too widely drawn in the circumstances of this case. We accept that, as originally drafted, the prohibitions would include the younger daughter of the applicant. As the respondent pointed out, it is important to recognise the role of social services, who have been taking a close interest in the welfare of the applicant's children and have provided assessments as to the risks that the children and the family would be exposed to. The respondent accepts the concern about the prohibitions being expressed by the applicant is genuine and proposes an additional term to be inserted in the order after prohibition (8) as follows:

"Providing social services have provided and maintain their specific agreement, prohibitions 6 to 8 do not apply to his daughter [whose name is then set out]."

17. In our judgment, that amendment would meet the criticisms made and would ensure some control over the applicant's conduct towards his daughter. Accordingly, we would insert that additional term after prohibitions (6) to (8), but otherwise maintain them as currently drafted and as approved by the learned judge.

Prohibition (9)

18. We accept the submission, as does the respondent, that this prohibition adds nothing to the restrictions under the Safeguarding Vulnerable Groups Act 2006. We delete it therefore from the SHPO.

19. To the limited extent that we have set out, we allow this appeal and modify the SHPO accordingly.