Tailored SHPOs: Internet Restrictions Are Not “Standard” and Must Be Proved Necessary and Proportionate

1. Introduction

R v Garnett ([2025] EWCA Crim 1830) is a Court of Appeal (Criminal Division) decision concerning the lawful scope of a Sexual Harm Prevention Order (SHPO) imposed following convictions for voyeurism. The appellant pleaded guilty to eight counts of voyeurism and received a custodial sentence (unchallenged on appeal). The appeal focused solely on whether the terms of a 5-year SHPO were necessary and proportionate given the nature of the offending.

The offending involved covert filming of four adult male colleagues/friends (C1–C4) in private settings (bathroom/bedroom) using hidden cameras, with recordings stored privately. A key issue was that the SHPO imposed at first instance contained wide internet and social media restrictions despite no evidence that images were uploaded or shared online.

2. Summary of the Judgment

The Court of Appeal held that SHPO restrictions must be individually justified by reference to the offender’s conduct and the statutory aim of preventing sexual harm. It concluded that broad internet-related prohibitions were not shown to be necessary where the offending did not involve the internet or dissemination.

  • Paragraphs 1–6 and 9–13 of the SHPO (internet/social media-related) were quashed.
  • Paragraphs 7 and 8 (controls on possession of image-storage devices and use of cloud storage, with notification/inspection obligations) were retained.
  • The SHPO remained in force for 5 years, but in a substantially narrowed form, focused on storage/retention risk.

3. Analysis

3.1 Precedents Cited

R v Parsons & Morgan [2017] EWCA Crim 2163

The Court treated R v Parsons & Morgan [2017] EWCA Crim 2163 as the central authority on SHPO discipline. It reproduced the core propositions (at [5]) and applied them directly:

  • Necessity gateway: no SHPO should be made unless necessary to protect the public from sexual harm in the statutory sense.
  • Clarity/enforceability: terms must be “clear and realistic,” because breach is a criminal offence.
  • Non-oppression and proportionality: terms must not be oppressive and must be proportionate overall.
  • Tailoring: “There is no one size that fits all factual circumstances.”

In Garnett, the “tailoring” requirement did the operative work: the Court rejected the idea that internet restrictions could be justified merely because such clauses are common in SHPO templates or are “often associated” with other forms of sexual offending.

NC (supra)

The judgment also references NC (supra) for the restatement that SHPO terms must not be oppressive and must be proportionate. Although not elaborated in the text, the citation is used to reinforce that proportionality is a substantive constraint, not a formality.

3.2 Legal Reasoning

(a) The statutory test and structured scrutiny

The Court anchored the analysis in section 345 and section 346 of the Sentencing Act 2020. Under section 346, an SHPO may be made only if it is necessary for the purpose of: protecting the public (or particular members of it) from sexual harm from the offender, or protecting children/vulnerable adults from sexual harm outside the UK.

The Court emphasised the importance of careful scrutiny because breach carries a maximum of 5 years’ imprisonment. That penal consequence increases the need for the sentencing court to examine each proposed restriction and ensure it goes no further than necessary.

(b) Offence eligibility does not answer necessity

Voyeurism attracting imprisonment is a “sexual offence” within Schedule 3 to the Sexual Offences Act 2002, engaging the court’s power to impose an SHPO. But the Court distinguished: eligibility to make an SHPO from whether the statutory necessity test is met for each term.

(c) Critique of “standard” or template SHPOs and the prosecution’s role

A significant feature of the reasoning is procedural and practical: the prosecution provided almost no explanation of the draft SHPO’s terms. The Prosecution Sentencing Note merely said “SHPO pending for today,” and advocacy at the hearing did not walk the judge through why each term was necessary and proportionate on the facts.

The Court held that, in every case where an SHPO is sought (even “straightforward” cases), the prosecution must be prepared to address the court on necessity and proportionality of each term. Without that assistance, there is a real risk of courts making “usual or standard” orders without the required statutory evaluation—contrary to Parsons and the tailored-order principle.

(d) The internet restrictions failed on the evidence

The sentencing judge described the SHPO as designed “to prevent any images being uploaded to the internet,” and treated comprehensive terms as unavoidable. The Court of Appeal rejected this approach:

  • There was no evidence that any images had been uploaded or shared.
  • The voyeurism was not “internet-based”; it involved covert recording and private retention.
  • Accordingly, restrictions on internet use and social media were not shown to be necessary and were not justified as proportionate controls.

The Court therefore quashed the internet/social media paragraphs (1–6 and 9–13).

(e) Storage/retention controls were justified

By contrast, paragraphs 7 and 8 directly addressed the evidenced risk: repeated covert recordings over time and their storage. The Court upheld:

  • Device possession controls (notification to police within three days; making devices available for inspection; not deleting images).
  • Cloud storage controls (notification within three days of account creation; making accounts accessible for inspection, including credentials).

These terms were found necessary and proportionate given the pattern, volume, and retention of recordings.

3.3 Impact

  • Reinforced requirement of term-by-term justification: Courts should not accept broad SHPO “packages” without an evidential and analytical link to the offending risk.
  • Limits on internet clauses by default: Internet/social media prohibitions will be vulnerable on appeal where the conduct is offline and there is no evidence of online distribution risk.
  • Higher expectations of prosecution assistance: Prosecutors must be ready to explain why each clause is necessary/proportionate; failure to do so risks partial or total quashing.
  • Encourages tailored drafting: Orders are more likely to survive appeal if they focus tightly on demonstrated risk factors (here: covert recording and storage/retention).

4. Complex Concepts Simplified

Sexual Harm Prevention Order (SHPO)
A court order imposing prohibitions/requirements on a person convicted of certain sexual offences, aimed at preventing future sexual harm. Breaching it is a separate criminal offence.
Necessary and proportionate
“Necessary” means needed to achieve the statutory protective purpose (not merely desirable). “Proportionate” means the restriction must not go further than required, balancing public protection against the seriousness of intrusion into the offender’s life.
Tailoring (no “one size fits all”)
SHPO terms must match the actual risk shown by the facts. Courts should avoid imposing standard terms that address risks not present on the evidence.
Cloud storage / remote electronic storage
Online services (e.g., accounts storing files/photos) that can be accessed from multiple devices. The upheld SHPO terms required notification and police inspection access.
Reporting restrictions (Sexual Offences (Amendment) Act 1992)
Lifelong anonymity for complainants in sexual offence cases: publications must not include details likely to identify a victim unless lawfully waived/lifted.

5. Conclusion

R v Garnett [2025] EWCA Crim 1830 restates and operationalises the principle that SHPOs must be evidence-led, term-specific, and tailored. The Court accepted that the appellant’s conduct was grave and merited custody, but drew a clear line: restrictions—especially expansive internet/social media clauses—cannot be imposed because they are common or comprehensive. They must be shown to be necessary and proportionate to preventing the sexual harm risk actually demonstrated by the case. The result is a narrowed SHPO focused on storage and retention, and a strong warning against “standard form” SHPOs unsupported by analysis.