Acquittal-Constrained Ancillary Orders: Device Deprivation and SHPO Search Powers Require Proven Necessity; Indefinite Orders Need Specific Justification

1. Introduction

R v Valentine ([2025] EWCA Crim 1546, 11 November 2025) is a Court of Appeal (Criminal Division) decision addressing the lawful scope, evidential foundation, and duration of three common ancillary orders made at sentence: (i) a Sexual Harm Prevention Order (SHPO), (ii) a Restraining Order, and (iii) a Deprivation Order over electronic devices.

The appellant (aged 57 at conviction) was convicted at Portsmouth Crown Court of historic and more recent sexual offences against two complainants (C1 and C2): indecent assault (s.14 Sexual Offences Act 1956) and multiple counts of assault by penetration (ss.2 and 6 Sexual Offences Act 2003). The Crown offered no evidence on counts alleging making indecent photographs and possession of prohibited images (Counts 5–8), and not guilty verdicts were entered on those counts.

The appellant did not appeal the custodial element of his extended determinate sentence. With leave, he appealed the ancillary orders, contending (a) they were unlawfully founded on matters implicit in the acquitted image-related counts, (b) certain SHPO terms were not “necessary”, and (c) the indefinite duration (“until further order”) of the SHPO and Restraining Order was unjustified and disproportionate.

The Court also reminded that complainant anonymity applied under the Sexual Offences (Amendment) Act 1992.

2. Summary of the Judgment

The Court of Appeal allowed the appeal in part and varied the ancillary orders as follows:

  • Deprivation Order: set aside. The sentencing judge was not entitled to conclude the devices were intended to facilitate offending (s.153(3)(b) Sentencing Act 2020) on reasoning that effectively assumed guilt on the acquitted image-related counts.
  • SHPO: the device inspection and home/vehicle access provisions (paragraphs 5 and 6) were deleted as not shown to be necessary and as resting on the same acquittal-prohibited footing; the duration was reduced from indefinite to a fixed term of 15 years.
  • Restraining Order: upheld in principle for C1 and C2 (the Court rejected a “necessity” test under s.360 Sentencing Act 2020), but its duration was reduced from indefinite to 15 years.

3. Analysis

3.1 Precedents Cited

R v Ayensu ...1982) 4 Cr. App. R.(S.) 248

Role in this case: Ayensu supplied the controlling principle that where the Crown does not proceed (or the defendant is acquitted) on counts to which he pleaded not guilty, the sentencing court must not sentence—or make sentence-related findings—on the basis that he is guilty of those offences. Here, the Court of Appeal held the sentencing judge’s reasoning on the devices (“they contained images of children” and “gave buoyancy and life” to sexual preoccupation) impermissibly crossed that boundary, because it depended on a factual premise closely aligned with the acquitted image counts (Counts 5–8).

Doctrinal significance: The decision confirms that Ayensu constrains not only the headline custodial sentence but also the fact-finding that underpins ancillary orders—particularly where those orders require proof of use, intent, or necessity that cannot lawfully be supplied by “acquittal-inconsistent” assumptions.

R v Debnath [2005] EWCA Crim 3472; [2005] 2 Cr. App. R.(S.) 25

Role in this case: Debnath was cited to frame the statutory purpose of a restraining order: protection from conduct amounting to harassment or causing fear of violence. The appellant argued this imported a “necessity” threshold. The Court of Appeal disagreed, holding that s.360 Sentencing Act 2020 does not impose necessity; rather, the court must ensure the order is made for the statutory purpose and then exercise discretion.

Practical consequence: Debnath remains central to identifying the protective function of restraining orders, but this judgment clarifies that the test is not rigidly one of necessity. Courts retain discretion, though that discretion must be anchored to the statutory purpose and proportionality (including time limits).

R v McLennan and Bingley [2017] EWCA Crim 2464; [2018] 1 WLR 2969

Role in this case: McLennan and Bingley provided guidance that an indefinite SHPO should not be imposed as a default; it requires “careful consideration” and ordinarily a brief justification. The Court of Appeal found the sentencing judge gave no adequate reason why an indefinite SHPO was required, and the need was not so “obvious” that reasons could be dispensed with.

Doctrinal significance: The decision reinforces that the duration of preventive orders is not an afterthought: where the court chooses an indefinite term, it must be able to articulate why a fixed (even lengthy) term would not meet the statutory protective purpose.

3.2 Legal Reasoning

(a) Deprivation Order (s.153 Sentencing Act 2020)

Section 153 permits deprivation where property has been used to commit/facilitate an offence, or where it was intended to be used for that purpose (s.153(3)(b)). The sentencing judge purported to rely on intent, reasoning that child images on devices “facilitated offending” by sustaining the offender’s sexual preoccupation.

The Court of Appeal set the order aside for two linked reasons:

  1. Ayensu constraint: given acquittals on Counts 5–8 (and the Crown’s decision to offer no evidence), the court could not proceed on an assumption that the appellant knowingly possessed or used indecent/prohibited images. The judge’s reasoning effectively did so.
  2. Insufficient basis for “intended use”: even putting Ayensu to one side, the “buoyancy and life” rationale did not establish the statutory requirement that the devices were intended to be used to commit or facilitate an offence. The judgment underscores that deprivation is not justified by moral suspicion or generalized risk; the statutory test demands a properly grounded inference of use or intended use.

(b) SHPO Terms and Necessity (s.343 Sentencing Act 2020)

SHPOs may include only prohibitions/requirements that are necessary to protect the public (or particular members) from sexual harm from the offender. The contested SHPO clauses required the appellant to (i) make electronic devices available for inspection and provide login details, and (ii) not refuse police access to home/vehicle for compliance searches.

The Court of Appeal deleted these clauses because:

  • They were founded on acquittal-inconsistent material (the judge relied on “material found on the devices” despite acquittals/no evidence on the image counts).
  • The prosecution had not otherwise shown necessity for intrusive device inspection and search-access powers, particularly where the proven index offending did not involve digital devices.

(c) Duration of SHPO and Restraining Order

For the SHPO, applying R v McLennan and Bingley, the Court held the indefinite term required justification and was not self-evidently needed. It substituted a fixed duration of 15 years.

For the restraining order, the Court distinguished the governing test:

  • Restraining Order (s.360): no necessity test; the court must act for the statutory protective purpose, then exercise discretion. On the facts (serious sexual offending; the victims’ peace of mind; risk factors identified in the pre-sentence report), the order was within discretion.
  • Duration: the Court nonetheless held indefinite duration was not sufficiently justified and substituted 15 years.

3.3 Impact

The decision is likely to be relied upon in three recurring sentencing contexts:

  1. Ancillary orders cannot be built on acquitted counts: The judgment strengthens the practical reach of R v Ayensu by demonstrating its application to deprivation orders and technology-focused SHPO conditions, where courts might be tempted to rely on “background” allegations not proved.
  2. Technology/search SHPO conditions demand evidential justification: Device inspection, login disclosure, and home/vehicle search access are highly intrusive. This case signals that such terms will be struck out unless necessity is demonstrated by evidence linked to proved risk, not by unproven digital allegations.
  3. Indefinite protective orders require reasons: The Court’s substitution of fixed terms for both SHPO and restraining order will encourage sentencing judges to articulate why “until further order” is required, and to consider long but finite terms as the norm unless exceptional features justify indefinite duration.

4. Complex Concepts Simplified

  • “No evidence offered” and acquittal: When the Crown offers no evidence on a count, the court enters a not guilty verdict. The sentencing judge must then avoid treating the defendant as if he committed that offence.
  • SHPO (Sexual Harm Prevention Order): A civil preventive order imposed at sentence (or later) to manage risk of sexual harm. Its terms must be necessary for public protection; it cannot be used to impose conditions simply because they seem desirable.
  • Restraining Order (s.360 Sentencing Act 2020): An order to protect victims/others from harassment or fear of violence. The Court here held it is not governed by a strict “necessity” threshold, but must be directed to the statutory protective purpose and be a proper exercise of discretion.
  • Deprivation Order (s.153 Sentencing Act 2020): Allows the court to deprive an offender of property used or intended to be used for committing/facilitating an offence. It requires a specific statutory basis (use or intended use), not generalized concerns.
  • “Until further order” (indefinite duration): An order with no fixed end date. Appellate courts expect sentencing judges to explain why an indefinite term is needed rather than a long fixed term.
  • Sexual Offences (Amendment) Act 1992: Protects complainants’ lifelong anonymity in publications unless lawfully lifted/waived.

5. Conclusion

R v Valentine reaffirms and develops the discipline of principle in ancillary orders: the court must not use deprivation powers or intrusive SHPO technology/search conditions to do, indirectly, what it cannot do directly—namely proceed on a basis inconsistent with acquittals. It also reinforces that preventive orders should normally be time-limited unless a clear, articulated justification supports an indefinite term. The result is a more exacting, evidence-led approach to the imposition and tailoring of post-sentence controls, particularly where they intrude into digital privacy and property rights.