BSQ Indecent Images Blog – Is It Time to Update Sexual Harm Prevention Orders?
Sexual Harm Prevention Orders (SHPOs) are legal provisions applied to individuals convicted of offences listed in Schedules 3 and 5 of the Sexual Offences Act 2003 (SOA 2003). These orders are a common component of the sentencing package in indecent images cases, as these offences are included in Schedule 3 of the SOA 2003. For a detailed analysis of the typical terms included in an SHPO, you can access our guide to Sexual Harm Prevention Orders.
As highlighted in our review of SHPOs in practice, these orders are often subject to appeals, primarily because they are frequently drafted incorrectly by the police or prosecution. A recent Court of Appeal decision—R v Dewey and Rex [2024] EWCA Crim 409, dated May 22, 2024— highlights some of the practical issues that can arise when SHPOs are imposed.
The main issue considered in Rex was a determination of the appropriate terms for an SHPO, which can often lead to controversy. In the Rex case, the Prosecutor mentioned anecdotal evidence, noting that they had encountered at least 50 different variations of SHPO wording related to restrictions on internet-enabled devices during their career at the bar.
Confusion Over SHPO Terms
Despite the Court of Appeal providing clear guidance on SHPO model terms in the leading case of Parsons and Morgan [2017] EWCA C2163 confusion over SHPO terms remains common. The model directions established in Morgan have been incorporated into the current Crown Court Compendium Volume 2 (Sentencing), specifically in section 6.3.
In day-to-day practice however, problems often arise because draft SHPOs, which should be prepared by the Crown Prosecution Service (CPS), are frequently drafted by the police. These drafts are often served on the defence at short notice before a sentencing hearing, in breach of the Criminal Procedure Rules 31.3(1)(b) and (5), which require that draft orders be served at least two business days before a hearing.
The Test for SHPO Terms
When evaluating whether the terms of an SHPO are justified, the test to be applied is whether the proposed conditions are necessary and proportionate to achieve the SHPO’s aim. The purpose of an SHPO is to protect “the public or any particular members of the public from sexual harm,” as defined in the SOA 2003 and section 346 of the Sentencing Act 2000.
In the Dewey case, the Court of Appeal amended the SHPO terms, using model wording largely based on the precedent set in Parsons and Morgan. However, the Court of Appeal's views on whether the guidance in Parsons needs updating are particularly noteworthy.
The Need for Updated Guidance
When Parsons was decided, the Court of Appeal had the benefit of expert evidence on internet access and business software, presented in two reports prepared specifically for that appeal. Since 2016, however, technology has advanced significantly, particularly with the rise of artificial intelligence. Noting these advancements, the Court recommended that
"Given the years that have passed since Parsons, the time may now be approaching where the precise wording of proportionate and realistic restrictions needs to be addressed once more, with appropriate contemporary expert evidence."
It is clear that the time has come to update the SHPO provisions to reflect the technological advancements of recent years. Such an update would promote standardized and consistent practice in the drafting of SHPOs across the criminal justice system, ensuring that the terms are both realistic and proportionate to the risk posed by the offender.
If you need help with a related case. our indecent images solicitors, can help. They are award-winning and amongst the most experienced lawyers in this field in the UK.