A Sexual Harm Prevention Orders (SHPO) can be imposed after a conviction for a relevant offence. The minimum length of a SHPOs is 5 years but they can be imposed for an indefinite period of time. These orders can restrict the liberty of an individual long after an individuals’ notification requirements on the Sexual Offenders Register have come to an end.
The case of McCallen has established that caution should be taken when a court considers an indefinite order. SHPOs should not be imposed for longer than necessary to protect the public.
The conditions of an order
The purpose of SHPOs is to protect the public from sexual harm by restricting an individual’s behaviour. The conditions imposed by a SHPO must:
- Be necessary and proportionate
- Have terms which are clear and understandable
- Not have terms which mean the person subject to the order is likely to break them accidentally
Often the conditions concern the use of the Internet or communication technology. As technology advances it is increasingly likely that older SHPOs may become more onerous to an individual’s day to day life.
In the 2017 case of Parsons the Court of Appeal considered issues created by SHPOs in relation to cloud storage and encryption software. Both of these features come as standard on many modern electronic devices. It was held that the terms of any order should be carefully considered so that they were necessary and proportionate, and specific enough that they did not catch an individual subject to a SHPO unaware. Specifically the Court of Appeal considered that the terms imposed should be targeted at the installation of encryption software rather than software which is “intrinsic” to the operation of a device (such as the encryption software on an iPhone which cannot be disabled).
Do the terms cause difficulty or is the order still necessary?
An application to vary or discharge a SHPO requires an application to the same court which imposed the order followed by an oral hearing. Following the hearing the court may make an order to vary or discharge a SHPO if the court considers it appropriate to do so. It appears that this may require a change of circumstances. The factors in support of an application are likely to be highly fact specific and require careful consideration on a case by case basis.
If there is an error with an order, or if an application to vary or discharge is unsuccessful SHPOs can be appealed. If a SHPO was imposed in the Magistrates’ Court it can be appealed to the Crown Court without need for permission to appeal within 21 days of sentence. After 21 days the Crown Court will need to grant permission for the appeal to be heard.
If a SHPO was imposed in the Crown Court it can be appealed to the Court of Appeal. The Court of Appeal will need to give permission to allow a full appeal to be heard.
Conclusion
It is important that orders are reviewed as technology evolves and the law tries to keep up. Careful consideration must be had of the terms of an order to ensure that they do not set an individual up to fail. To that end, any application or appeal should be considered by experienced lawyers.
John’s principle area of practice is defending individuals facing criminal allegations, he has defended individual’s accused of sexual offences. He is experienced in defending against SHPOs. John accepts instructions under the direct access scheme. This allows members of the public to instruct him directly to advise them on or represent them in suitable cases.
