Indefinite Sexual Harm Prevention Orders Are Not a Default: Reasons and Proportionality Required, Distinct from Sex Offender Notification Duration

3.1 Precedents Cited

• R v Sokolowski [2017] EWCA Crim 1903; [2018] 4 WLR 126
  The Court relied on Sokolowski for the proposition that an SHPO must be necessary and proportionate, and that an indefinite order should not be made “without careful consideration, or as a mere default option”. Where an indefinite order is imposed, the sentencing court should give reasons unless the necessity is obvious.
• R v Smith (Steven) [2011] EWCA Crim 1772; [2012] 1 WLR 1316
  This authority was used to underline the structural point that the duration of an SHPO does not automatically track the duration of sex offender notification requirements. The Court reiterated that even if notification is indefinite by statute, an SHPO still requires its own necessity/proportionality assessment.
• R v McLellan [2017] EWCA Crim 1464; [2018] 1 WLR 2969
  The Court invoked McLellan to emphasise procedural fairness and proper case management: the prosecution should serve a draft order in advance, indicating proposed requirements and duration (or at least flagging duration for determination), enabling adversarial testing and reasoned decision-making at first instance.

3.2 Legal Reasoning

The Court’s reasoning proceeds in three linked steps: (1) the statutory test for imposing an SHPO; (2) the heightened scrutiny for making it indefinite; and (3) the application of proportionality to the evidence of risk.

(a) Statutory gateway: necessity to protect the public from “sexual harm”

Referring to sections 344 and 346 of the Sentencing Act 2020, the Court restated that an SHPO may only be made if it is necessary to protect the public (or specified members) from sexual harm, including physical or psychological harm, caused by the offender committing Schedule 3 offences. Necessity is not satisfied by general disapproval or risk-aversion; it requires a demonstrated protective purpose grounded in the offender’s circumstances and the offending.

(b) Indefinite duration: not a default, and reasons required

The Court treated the duration of the SHPO as an independent and critical aspect of proportionality. An indefinite SHPO is a particularly intrusive and enduring restriction—especially where it governs internet use and possession of devices— and must therefore be justified by evidence showing that a fixed term would not adequately protect the public.

The sentencing judge’s approach was found deficient in two respects:

• No prior ventilation: duration was not discussed during submissions; it arose only after pronouncement of the order. The judge did not invite submissions when the point was raised.
• No reasons: the judge stated the SHPO would be indefinite but gave no explanation. The Court held the necessity for an indefinite SHPO was far from obvious on these facts.

(c) Separating SHPO duration from notification requirements

The appellant’s custodial sentence exceeded 30 months, so notification requirements were indefinite by operation of section 82 of the Sexual Offences Act 2003. However, the Court stressed (citing R v Smith (Steven) and Sokolowski) that this does not make an indefinite SHPO inevitable. Notification and SHPOs serve related but distinct functions, and the latter must not be used as an automatic add-on simply because notification is indefinite.

(d) Evidence-based proportionality: why 10 years, not indefinite

Having to determine the issue afresh because it was not properly addressed below, the Court identified factors pointing away from an indefinite SHPO:

• Time without reoffending: four years elapsed between offending and sentence with no further offending or troubling behaviour.
• Risk assessment: the pre-sentence report assessed risk of serious harm to children as medium, not high, and noted likely engagement with interventions.
• Absence of wider indicators: no evidence (including on devices) of other inappropriate interest in children beyond the index conduct.

Against that background, an indefinite SHPO was “clearly disproportionate”. The Court selected a 10-year term as the appropriate calibrated response, preserving the protective restrictions but limiting them to a period commensurate with the evidenced risk.

(e) Procedural discipline: the importance of a properly served draft

The Court’s reference to Criminal Procedure Rules 2025, rule 31.3(5) and McLellan signals that SHPO practice must be procedurally robust. A draft order should be served before sentencing and should address (or at least flag) duration. This is not a technicality: it enables meaningful submissions and helps avoid overbroad or under-justified restrictions, particularly where the SHPO is technologically intrusive.

3.3 Impact

• Reinforcement of “indefinite is exceptional”: The decision strengthens the message that indefinite SHPOs must be justified, with reasons, and are not a routine corollary of internet-facilitated sexual offending.
• Sharper separation between notification and SHPOs: Even where notification is indefinite by statute, courts must still independently evaluate SHPO duration. This guards against “notification-driven” overreach.
• Higher expectations of sentencing process: The judgment implicitly warns practitioners and judges that failures to ventilate duration and provide reasons invite appellate intervention, including substitution of a time-limited order.
• Technological restriction scrutiny: While the appeal targeted duration, the case underscores that extensive digital restrictions (monitoring software, bans on anonymisation tools, cloud storage controls) should be tethered to evidenced risk and proportionate timeframes.