Hemsley v R

Factual and Procedural Background

The Applicant pleaded guilty and was committed for sentence at the Bournemouth Crown Court, where he was sentenced to six months imprisonment concurrent on 23 counts of making indecent photographs or pseudo-photographs of a child. The Applicant was 27 years old at the time, with a previously clean character. A large number of images were found on his computer, mostly at the lowest level of severity, with no material indicating progression towards direct offending against children. The Applicant was made subject to an indefinite Sexual Offences Prevention Order ("S.O.P.O."), which he now seeks to challenge. The original S.O.P.O. contained prohibitions related to computer use, possession of images, employment, and involvement with groups likely to bring him into contact with children.

Legal Issues Presented

1. Whether the Sexual Offences Prevention Order as originally imposed was necessary and proportionate for the purpose of protecting the public from serious sexual harm.
2. The appropriate scope and terms of a S.O.P.O. in light of statutory requirements and the facts of the Applicant's case.
3. The appropriate duration of the S.O.P.O. consistent with relevant statutory provisions and case law.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory criteria under Section 104 and Section 107(2) of the Sexual Offences Act 2003, emphasizing the necessity of a S.O.P.O. to protect the public from serious sexual harm. It highlighted the importance of clarity, simplicity, and the avoidance of unreasonable compliance difficulties in such orders, given the criminal consequences of breach.

The court found the original prohibitions overly broad and not necessary in context: the first prohibition effectively extended police search powers beyond statutory limits and risked compromising the Applicant's employment; the second prohibition risked unintentional breach by criminalizing possession of mainstream media containing images of naked children for legitimate purposes; the third and fourth prohibitions were excessively wide, restricting indirect and incidental contact with children, which was unjustifiable and better managed under separate safeguarding legislation.

The court noted the absence of evidence supporting the need for such expansive restrictions and identified that the order’s provisions largely failed to address the sole identifiable risk—supporting the market for indecent images. Consequently, the court quashed the original S.O.P.O. and substituted a narrower order focused on controlled internet use and computer access with appropriate filtering software.

Regarding duration, the court considered the Applicant’s single conviction, cooperation, and supportive family circumstances, aligning the S.O.P.O. period with the notification period as per established case law.

Holding and Implications

The court QUASHED the existing Sexual Offences Prevention Order and SUBSTITUTED it with a narrower order containing two specific prohibitions:

• Restricted internet use limited to employment, study, lawful recreation, or purchasing goods/services.
• Restricted ownership/use of computers with internet access to places of employment or supervised public facilities, requiring installed software to prevent access to child pornography.

The substituted order was imposed for a period of seven years from conviction, consistent with notification requirements. The decision directly affects the Applicant by narrowing restrictions and clarifying terms, without establishing new precedent beyond reaffirming existing principles on necessity, clarity, and proportionality in S.O.P.O.s.