Parsons v REGINA

Factual and Procedural Background

This judgment concerns two separate cases combined before the Court, both relating to prohibitions on internet access and use imposed by Sexual Harm Prevention Orders ("SHPOs"). The Court was asked to consider whether existing guidance from prior case law regarding restrictions under predecessor Sexual Offences Protection Orders ("SOPOs") requires adaptation due to technological and societal developments, and whether certain precedent decisions apply mutatis mutandis to SHPOs.

The legislative framework for SHPOs, as set out in the Sexual Offences Act 2003, differs from SOPOs notably in the scope of protection and the definition of "child" (now under 18 rather than under 16). The Court addressed general principles for imposing SHPOs, including necessity, clarity, enforceability, proportionality, and tailoring to individual circumstances.

The first appellant ("Appellant One") pleaded guilty to multiple offences involving indecent images of children and possession of extreme pornographic images. He was sentenced to a community order with a requirement to attend a sex offender programme and was subject to a SHPO imposing a near-blanket ban on internet access and possession of internet-capable devices, save for limited exceptions.

The second appellant ("Appellant Two") pleaded guilty to making indecent photographs of a child and possession of a controlled drug. He received a suspended prison sentence and was subject to a 10-year SHPO containing various prohibitions related to contact with children, internet use, cloud storage, and encryption software.

Legal Issues Presented

1. Whether the guidance established in R v Smith regarding restrictions on internet access under SOPOs requires adaptation in light of technological and societal changes.
2. Whether the decision in R v McLellan and Bingley applies mutatis mutandis to SHPOs as well as SOPOs.
3. The appropriateness and legality of blanket bans on internet access and use under SHPOs.
4. The proper age definition of "child" for prohibitions concerning contact and internet restrictions under SHPOs.
5. The use and regulation of risk management monitoring software, cloud storage, and encryption software within SHPO terms.
6. The scope and proportionality of prohibitions on contact with children under SHPOs, including gender and age considerations.

Arguments of the Parties

Appellant One's Arguments

• Contended that a blanket prohibition on computer use or internet access was neither permitted nor proportionate, relying on the authority of R v Smith.
• Challenged the SHPO terms as unrealistic, oppressive, and disproportionate.

Appellant Two's Arguments

• Objected to specific prohibitions within the SHPO, notably those relating to contact with children, internet device monitoring, cloud storage, and encryption software.
• Did not dispute certain other prohibitions, such as those requiring retention of internet history or device inspection.

Crown's Arguments

• Accepted that blanket bans on internet access are generally disfavoured but did not rule out their use in exceptional cases.
• Supported the necessity of prohibitions aimed at protecting the public and children from sexual harm.
• Agreed on the need for clear, realistic, and enforceable SHPO conditions.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by reaffirming the foundational principles governing SHPOs: necessity to protect the public from sexual harm, clarity and enforceability of prohibitions, avoidance of oppressive terms, proportionality, and tailoring to individual circumstances.

Regarding blanket bans on internet use, the Court endorsed the previous disapproval of such prohibitions as disproportionate and unrealistic, noting that the importance of internet access in everyday and commercial life has significantly increased since the Smith decision. It acknowledged that while a blanket ban might be justified in exceptional cases, it is generally inappropriate.

The Court considered the definition of "child" under SHPO legislation (persons under 18) and found it consistent with other statutory provisions protecting children, thus supporting prohibitions extending to under-18s unless case facts justify a narrower scope.

On technological issues, the Court relied on expert evidence to analyze risk management monitoring software, cloud storage, and encryption software. It emphasized the administrative burdens and practicalities involved, rejecting prohibitions that would impose unrealistic demands on police resources or inadvertently ban legitimate device use.

The Court proposed a balanced approach requiring offenders to notify police upon acquiring internet-capable devices, permit inspection, allow installation of monitoring software, and refrain from deleting internet history or bypassing monitoring. Prohibitions on cloud storage and encryption software were to be narrowly targeted to deliberate installation beyond default device functions to avoid ensnaring innocent users.

Regarding contact prohibitions, the Court reiterated that such restrictions require an identifiable risk of contact offences and should not be imposed merely as a precaution. In the second appellant’s case, the Court found contact prohibitions necessary and proportionate but limited them to female children, reflecting the nature of the offending.

The Court applied the principles from McLellan and Bingley to SHPOs, confirming that the Crown Court has jurisdiction to vary or discharge SHPOs under the relevant statutory provision.

Finally, the Court concluded that the guidance from Smith remains generally applicable but must be adapted to reflect technological advances and the SHPO legislative framework, particularly concerning definitions and targeted prohibitions.

Holding and Implications

The Court made the following rulings:

• Appellant One's SHPO was quashed and replaced with a tailored SHPO that prohibits internet use and device possession except under specific conditions, including notification, inspection, and monitoring software installation, with exceptions for work and public places.
• The Victim Surcharge imposed on Appellant One was quashed as unlawful, and the sentence was adjusted to address temporal issues with the offences.
• Appellant Two's SHPO was quashed and substituted with a revised SHPO incorporating contact prohibitions limited to female children under 18 and similarly tailored internet and device restrictions as in Appellant One's case.
• The Victim Surcharge amount imposed on Appellant Two was reduced to reflect the correct statutory amount.

The direct effect is to impose proportionate, realistic, and enforceable SHPO terms that reflect current technological realities and statutory definitions. The Court explicitly rejected blanket internet bans as disproportionate except potentially in exceptional cases. No new precedent beyond these applications was established, but the Court confirmed the continued relevance of prior case law with necessary adaptations.