On bad terms

The powers of the courts in relation to sexual offences prevention orders (SOPOs) are contained in sections 104 to 113 of the Sexual Offences Act 2003.

Section 104 of the Sexual Offences Act 2003 confers a power to make an order if the court is satisfied that it is necessary to make such an order for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant.

In short, they must be necessary rather than typically tacked on to the end of any case involving a sexual offence, and they must be focused at preventing serious sexual harm. The Court of Appeal has bemoaned the fact that badly drafted, broadly worded orders are fast becoming a matter of routine.

In R v Helmsley [2010] 3 All ER 965 CA, such an order came in for extensive criticism by the court and offers an insight into the permissible limits of such orders.

The defendant was convicted of possession of 6,592 indecent images. Of those images found on the defendant's computer, nearly all were at level one. There were also 71 moving images: 24 at level one; 18 at level two; and 29 at level four. The defendant had no previous convictions. He pleaded guilty and was committed for sentence to the Crown Court and sentenced to six months' imprisonment. The terms of the original SOPO were:

(1) not to own or use any computer, electronic, magnetic or optical device which has the capability of storing, receiving or transmitting data without permitting any police constable to enter the premises upon which they are kept in order that they can examine and, if necessary, remove, any such device for the purpose of carrying out such an examination;

(2) not to own or possess any image of a naked child, under the age of 18, whether printed, digitally or electronically stored. This includes any images of a naked child under the age of 18 that has been published in any book or film that has been on general release within the UK. For the purposes of this prohibition, naked child means any female under the age of 18 who has their nipples, genitals or buttocks exposed or any male under the age of 18 who has their genitals or buttocks exposed;

(3) not to work either paid, unpaid or voluntary where he may have access, directly or indirectly, to any child under the age of 16; and

(4) not to have any involvement with any club, team group or organisation that is likely to bring him into contact with children under 16. The defendant understandably appealed against that order.

Unnecessarily wide

The SOPO in question banned him from using any computer equipment unless the police had the power to enter his home or workplace to check up on compliance. He was prohibited from owning not just indecent images of children, capable of being criminal conduct in itself, but any naked images '“ be it medical textbook or artwork. He was also prohibited under the order from being involved in social activities likely to lead him into contact with children. The Court of Appeal decided that the SOPO was unnecessarily wide and impossible to comply with.

The SOPO gave the police far greater power to search and seize material than they would otherwise have power to under PACE. It also indirectly imposed obligations on third parties; for example, on an employer who would have to allow inspection of a computer used at work. Common sense suggests no one would be likely to employ him on these terms. There was room for unintentional breach. It was impossible in advance to know whether a film might include an image of the type stated in the order.

New order

The existing SOPO was quashed and substituted by one in the following terms: (1) not to use the internet for any purpose other than seeking employment, study, work, lawful recreation or the purchase of the goods or services; and (2) not to own or use, save at his place of employment or at a supervised facility open to the public, any computer with access to the internet which does not have a software programme designed to prevent access to child pornography installed and in operation.

The court also noted that a SOPO should generally coincide with the length of a notification requirement.

A SOPO should be clear and precise. It should be capable of compliance. It should not require performance of some obligation by a third party. It should not be unreasonably hard to obey and it should be free from the risk of inadvertent breach. It should be proportionate in length. In this case, the provisions of the order bore little relation to the risk.

Can the much maligned SOPO ever be useful to a defence advocate? It can bridge the gap between a determinate sentence and IPP. When IPP is a live issue, the case of R v C & Ors [2008] EWCA Crim 2790 suggests that a SOPO may remove the need for a sentence of IPP. The court is not only entitled to but should have in mind all the alternative and cumulative methods of protecting the public against the risk posed by defendant. In this case, the example was given of a sexual offences prevention order, with appropriate conditions attached, structured around a determinate sentence, or an extended sentence could provide a total package. In other words, if the total sentencing package provides appropriate protection then IPP should not be imposed.