Written by Ruth Peters, 27th September 2023
Ruth Peters considers sentencing in relation to indecent image cases and whether a court will always impose a Sexual Harm Prevention Order (SHPO) in light of recent case law.
What is a Sexual Harm Prevention Order (SHPO)?
A Sexual Harm Prevention Order often known as a SHPO is an order made by a court imposing a list of prohibitions tailored to the circumstances of a particular case. They can be made against any individual who is convicted of a qualifying offence under the Sexual Offences Act.
Sexual Harm Prevention Orders replaced Sexual Offences Prevention Orders (SOPO) and Foreign Travel Orders (FTO) in March 2015. The purpose of such an order is to protect the public from sexual harm by restricting behaviour. For example, if an individual has been convicted of indecent images offences, their access to the internet is likely be restricted.
Who can be made subject to a Sexual Harm Prevention Order?
A SHPO can be given to anyone convicted of:
- A sexual offence listed in Schedule 23 of the Sexual Offences Act 2003
- Certain non-sexual offences listed in Schedule 5 of the Sexual Offences Act 2003
SHPOs may also be given to individuals who have not been convicted of a sexual offence, but whose behaviour is deemed by the police to be particularly risky. In such cases, the police can apply to the court for a SHPO and an individual has the right to challenge the same.
In order to make an order a court must be satisfied that the offender presents a risk of sexual harm to the public (or particular members of the public) and that such an order is necessary to protect against such risk.
What sort of conditions does a SHPO include?
As indicated above each order should be tailored to the particulars of an offence. The prohibitions need to be justified proportionate and enforceable. Most SHPOs are in relation to online offending and will therefore seek to regulate the use of the internet but should not prevent the carrying out of daily internet activities including banking and shopping.
It is usual to see prohibitions preventing deletion of internet search history and allowing the police to check electronic devices without warning. Usual conditions include:
- Prohibitions on using any device capable of accessing the internet unless such devices are declared to the Public Protection Unit, devices have the capacity to maintain and display history of internet use, devices are made available on request for inspection by a police officer/police staff and the relevant Public Protection Unit are notified within a certain amount of time of the acquisition of any new devices
- Prohibitions on intentionally deleting history of internet usage/other files which record internet or file browsing history
- A prohibition on intentionally using any software/mobile device application which prevents an internet enabled device from retaining and/or displaying the history of internet use
- A prohibition on intentionally using the cloud or similar remote storage media or facility unless the use of such is declared and account details are provided to the Public Protection Unit and access is provided on request for inspection by a police officer/ police staff
- Prohibitions on replacing or disposing of any item or device without the prior express permission of the Public Protection Unit
- Prohibitions on contacting or communicating using an electronic device with any person who purports to be a child under 16 without written authority for communication with a particular child from police or Social Services
- Prohibitions on staying overnight within any household where a child under 16 is present without written approval of Social Services
- Having any unsupervised contact/communication of any kind with a child under the age of 16 other than where the same is inadvertent and not reasonably avoidable in the course of daily life or with the consent of the child’s parent or guardian who has full knowledge of a defendant’s conviction and with the express approval of Social Services.
Will a court always impose a Sexual Harm Prevention Order in an indecent images matter?
As indicated above an order can only be made if it is necessary to protect the public or members of the public from sexual harm by the offender. Normally in indecent images matters a Sexual Harm Prevention Order is justified as it is accepted that the offender has a sexual interest in children which might result in harm which must be guarded against.
However, this may not always be the case.
Recent case law relating to SHPOs in indecent image cases
The recent case of Modoran [2023] EWCA Crim 1054 illustrates this point. The case relates to an indecent images conviction where the defendant had transgressed the law and the Crown Prosecution Service accepted there was no predilection to like underage children.
In this case the appellant pleaded guilty to possession of indecent images of children on a particular basis. The basis was that he was a member of a telegram group set up to discuss crypto currencies but within such group other group members sent indecent images of children. He clicked on the files and accepts that on doing so he viewed on his computer indecent images across Categories A, B and C.
A basis of plea was put forward by the defence and accepted by the Prosecution. Accordingly, the Judge passed sentence on the basis that the appellant in this case had no sexual interest in children. This was not material he had sought out for his sexual pleasure and the pre-sentence report supported this.
A Sexual Harm Prevention Order was given by the court as part of sentence and this was appealed.
The Court of Appeal decided it was not necessary to impose a Sexual Harm Prevention Order saying;
‘We agree with the submissions. Normally in cases such as this, a Sexual Harm Prevention Order is justified on the basis that the offender has a sexual interest in children which might result in harm which must be guarded against. There is no imperative to the making of an order in this case. Therefore, the order was unnecessary, disproportionate and not justified. It follows that we allow this appeal and quash the Sexual Harm Prevention Order.’
Olliers’ experience in dealing with sentencing for indecent image offences
At Olliers we have dealt with a number of similar cases. In such matters there may well be an argument that it is not in the public interest to prosecute an individual or that an out of court disposal, for example a caution, may be a more suitable way of disposing the case.
However, when prosecuted, the case law above highlights that imposition of a SHPO is not automatic and needs to be carefully considered.
Olliers Solicitors Specialist Indecent Image Lawyers
At Olliers we have a team of specialist solicitors who can assist those under investigation for indecent image offences.
We have many years’ experience of dealing with individuals investigated and/or prosecuted in relation to indecent image offences. We understand that for many individuals with no prior involvement with the Criminal Justice System it can be a terrifying experience and we aim to explain the process and procedures working together to achieve the best outcome for you.
If you face investigation/prosecution for an indecent images offence, please contact our specialist team of lawyers.
