Sexual Offences Prevention Ordersvolume 1

Sexual Offences Prevention OrdersVolume 1

117.8Being in the company of those under 18

See also: R v Wille 2012 EWCA Crim 1599 (Digital and oral sex with child. Abuse of trust. Good character. The term not to associate with those under 18 without full disclosure etc. was oppressive and not necessary. Term quashed.)

117.20Test to applyTest of necessity

R v Turnbull 2010 EWCA Crim 3149 D pleaded to 13 offences of making an indecent photograph of a child. He pleaded not guilty to three counts (counts 1-3) of taking an indecent photograph of a child, and other counts. Those pleas were accepted. A SOPO was imposed. The photograph which was the subject of count 2 showed a young female naked on a bed, exposing her vagina. Two other photographs, accepted as taken by D on a holiday, showed a woman and a girl eating a meal together. The girl in the photographs looked similar to the girl in count 2. The prosecution requested an order which prohibited contact with children, on the basis that there was a risk of D progressing to contact offences. The defence argued there was no risk. The prosecution submitted that the prohibitions on contact were justified because the images which were the subject of counts 1-3 were such as to permit the inference that there was a real risk of contact between D and children, contact which may lead to the taking of indecent images. Held. As counts 1-3 were left on the file, and there was in the police interview no admission by D that he had taken these photographs, there is no evidence that he had taken that photograph. It follows that there is no evidence from which it may be inferred that there is the risk of contact identified by the prosecution. The necessity for an order prohibiting contact was not made out. The relevant prohibitions were quashed.

117.26Evidence

R v Aldridge and Eaton 2012 EWCA Crim 1456 LCJ D pleaded to indecent image offences. A SOPO was made. He was accused of breaching the order but the judge dismissed the charge and then without applying the Criminal Procedure Rules made variations to the SOPO. A pre-sentence report account of an incident was relied on. Held. The entire process was inappropriately informal. We quash the variations save one which was not based on a procedural failure.

117.33Contact with children prohibitions

R v Davies 2012 EWCA Crim 1633 (Plea to grooming. Began relationship with V, aged 15 years and 11 months, who was vulnerable resident in a care home, managed by his partner’s mother. Aged 25 at appeal. Restriction preventing D ‘allowing any female child under 16 into his or any residence where he may stay unsupervised’ was unnecessary and disproportionate. Order amended to permit seeing his daughter.)

117.35Internet/Computer prohibitions

R v Williams 2012 EWCA Crim 1674D was convicted of rape, anal rape and taking indecent photos involving a young girl. A SOPO prohibited him from ‘downloading any material from the Internet; save downloading for the purpose of any lawful employment or study”. Held. The order was too wide and flawed on the grounds of uncertainty, proportionality and enforceability. It will be amended to: The applicant will be prohibited from: a) using any device capable of accessing the Internet which does not have the capacity to retain or display the history of Internet use; b) making any attempt to delete such history of Internet use; c) making any attempt to disable the capacity of the device to record and retain that history of Internet use; and d) refusing to show such a history of Internet use to a police officer if so requested.

R v M 2012 EWCA Crim 2148 D pleaded to three counts of causing a child to watch a sex act. Held. Applying R v Smith 2009 we substitute: ‘The defendant is prohibited from: 1 Using a device capable of accessing the internet unless: i) it has the capacity to retain and display the history of internet use, and ii) he makes the device available on request for inspection by a police officer. 2 Deleting such history. 3 Using the internet to contact or to attempt to contact any female known or believed to be under the age of 16. 4 Possessing any device, including a mobile telephone, capable of storing digital images unless he makes it available on request for inspection by a police officer.’

117.39On the facts order correct/incorrect

See also: R v Micklewright 2012 EWCA Crim 1268(Plea to sexual activity with a child. 2½-year relationship involving sexual intercourse, oral sex and other sexual activity with the defendant’s 14/15-year-old neighbour. 10-year age gap. This was not an appropriate case for a SOPO. )

117.45IPP/DPP, Combined with

R v Instone 2012 EWCA Crim 1792 LCJ D was sentenced to IPP and a SOPO. He appealed the SOPO relying on R v Smith 2011. Held. As a result of R v Smith 2006, it would be rare for the two orders to be made simultaneously. Rare does not mean never, but here we quash the SOPO.

117.46Life sentences, Combined with

117.49aCrown Court can’t vary a Magistrates’ Court order

R v Hadley 2012 EWCA Crim 1997 In 2006, D committed a serious offence. On his release in 2008. D was made the subject of a stand-alone SOPO, until further order. In 2011 he was sentenced for five breaches. The agreed to adding an Internet condition. Held. The offence was SOA 2003 s 113(1)(a) which is not in the Sch 3 list (see para 117.12 in the book). Therefore no SOPO could be made. As variations to a Magistrates’ Court order had to be made at Magistrates’ Court (see Magistrates’ Courts Act 1980 s 108(7)), no variation was possible. Condition quashed.

117.56aOld SOPOs

R v Instone 2012 EWCA Crim 1792 LCJ D was sentenced to IPP and a SOPO in 2006. He appealed the SOPO relying on R v Smith 2011. Held. As the case was heard long before R v Smith 2006, the SOPO was justified. We are not a review body for every SOPO.

Note: This may be judicially convenient but it is everyone’s interest someone is able to review these unsuitable orders. The Lord Chief Justice may consider the order is something that happened a long ago but SOPOs apply to the present and the future. Ed.

117.56bAppealing variationsWhich court?

R v Aldridge and Eaton 2012 EWCA Crim 1456 LCJ R v Hoath 2011 EWCA Crim 274 was correctly decided. The appeal is to the Court of Appeal (Criminal Div.) not (Civil Div.).

*117.57Whether to appeal or to vary

R v Martin 2012 EWCA Crim 2272 D pleaded to indecent photographs and was in May 2010 given 30 months and a SOPO. On his release he applied to vary the SOPO and a draft revised order was agreed. The Judge, following R v Hoath 2011, refused. D appealed out of time. Held in October 2012. The order was disproportionately restrictive. We quash it and substitute another.

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