Dewey v R.

Factual and Procedural Background

This appeal, brought with leave of the single judge, concerns the proper terms of a Sexual Harm Prevention Order ("SHPO"). On 18 July 2023, the Appellant pleaded guilty at West London Magistrates' Court to four offences of making or possessing indecent images of children and one offence of possessing extreme pornographic images. He was committed for sentence to the Crown Court and, on 15 August 2023, was sentenced to 12 months imprisonment suspended for 2 years with a rehabilitation activity requirement and unpaid work. Due to the offences being listed in Schedule 3 of the Sexual Offences Act 2003, the Appellant was required to comply with notification provisions for 10 years and may be included in the relevant list by the Disclosure and Barring Service.

On the day of sentencing, shortly before the hearing, the prosecution uploaded a draft SHPO. Counsel exchanged views but could not agree on the final terms, requiring the court to decide the scope and terms of the final order. The appeal challenges only certain terms of the SHPO, not the sentence or ancillary orders.

The offending involved the Appellant uploading indecent and prohibited images to online storage. On 29 April 2022, police executed a search warrant at the Appellant's home, seizing ten devices. Analysis revealed numerous indecent images of children across categories A, B, and C, 78 extreme pornographic images, and over 1,500 prohibited images.

At sentencing, the Appellant was 37 years old with previous good character. He lost a senior role at a political consultancy and resigned as a local councillor following the offences. He had been open with his family, who provided letters of support, and had taken steps to address his offending, including attending counselling and enrolling in an MA course subject to disclosure of offences.

A pre-sentence report (PSR) noted the Appellant's sexual preoccupation, social isolation, and shame. It assessed him as a medium risk of re-conviction for internet sexual offences and a low risk for contact offences, with a medium risk of harm to children, mostly teenage boys.

The Recorder decided to include a non-contact provision in the SHPO based on the medium risk assessment but left other terms for agreement. The final SHPO included restrictions on contact with children under 18, use of internet-enabled devices with risk management software, possession and use of mobile phones, downloading password protected or disguised apps, possession of image-capturing devices, use of cloud storage, and access for police inspections.

Legal Issues Presented

1. Whether the non-contact provision in the SHPO was necessary and proportionate given the Appellant's offending and risk assessment.
2. Whether the terms relating to risk management software and device use were appropriate and proportionate.
3. Whether specific prohibitions on mobile phone possession, password protected apps, image-capturing devices, cloud storage, and police access were necessary and proportionate.
4. Whether the SHPO terms complied with the guidance established in Parsons and Morgan regarding effective and manageable restrictions.

Arguments of the Parties

Appellant's Arguments

• The contact provision should be removed entirely as there was no evidence of contact offences or preparation, and the PSR assessed a low risk of contact offending.
• The risk management software requirement should be replaced with a more manageable and proportionate term as preferred by the court in Parsons.
• The provision regarding mobile phones was unnecessary because such devices are already covered by the risk management software requirement, and there was no evidence of attempts to contact children via calls or texts.
• The prohibition on password protected or secure storage apps was overly restrictive; instead, the Appellant should only be required to provide details to police upon request.
• The ban on possessing image-capturing devices was unnecessary given no evidence that the Appellant had taken indecent images himself.
• The cloud storage restriction should be amended to avoid administrative difficulties identified in Parsons.
• The term granting police powers of entry to any premises was too broad; a proportionate requirement would be immediate access to devices for inspection on request.

Prosecution's Arguments

• The extreme nature and duration of the offending justified the SHPO terms, including the contact provision, which was not oppressive as it allowed contact with parental or guardian consent after disclosure.
• The risk management software requirement was necessary but drafted flexibly to allow police discretion if deemed unnecessary or burdensome.
• Providing mobile phone details was necessary and proportionate considering the offences.
• The prohibition on password protected apps targeted secret or secure storage, a necessary restriction.
• The ban on image-capturing devices was justified given the nature of the offending.
• The cloud storage restriction was not overly onerous.
• Police powers to access premises were necessary given the number of devices and to ensure compliance beyond mere delivery of devices.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Parsons and Morgan [2017] EWCA Crim 2163	Guidance on the terms of SHPOs, emphasizing necessity, proportionality, and practical enforceability of restrictions on internet-enabled devices.	The court relied on Parsons to assess the proportionality and practicality of the SHPO terms, particularly regarding risk management software, cloud storage, and device notifications. Parsons informed the court's decision to amend the SHPO to more manageable terms.
Smith [2011] EWCA Crim 1772	Earlier case on restrictions following indecent image offences, referenced in Parsons for updated guidance.	Referenced as part of the legal evolution leading to the current standards for SHPO terms, particularly on device restrictions.
Hanna [2023] EWCA Crim 33	Clarification that SHPOs must be necessary, not merely appropriate, with wide-ranging orders justified only where active contact offences or attempts exist.	The court applied Hanna to question the necessity of the non-contact provision in the present case, ultimately concluding it was not necessary or proportionate.

Court's Reasoning and Analysis

The court emphasized the principles of necessity and proportionality in crafting SHPO terms, referencing section 346 of the Sentencing Act 2020 and sections 103A and following of the Sexual Offences Act 2003. It noted the protections already afforded by notification requirements and the Disclosure and Barring Service, requiring any further restrictions to be justified as necessary, not merely appropriate.

Regarding the non-contact provision, the court doubted its necessity given the absence of evidence of contact offending or attempts and the PSR's low risk assessment for contact offences. After considering counsel submissions and the impracticalities of a narrower restriction, the court concluded that no non-contact provision was necessary or proportionate in this case.

On device-related restrictions, the court acknowledged the seriousness and duration of the Appellant's offending, necessitating control over internet-enabled device use. It followed the approach in Parsons, which balanced effective protection with practical enforceability, rejecting overly broad or administratively unworkable requirements such as mandatory installation of risk management software or blanket bans on certain devices.

The court found no necessity for prohibitions on mobile phone possession or image-capturing devices, as the Appellant had not used these to contact children or create indecent images. It also considered a term granting police powers of entry to any premises as disproportionate, given the Appellant's immediate compliance at arrest and existing inspection requirements.

Consequently, the court amended the SHPO to align with Parsons-type provisions, focusing on notification of devices, retention of internet history, provision of devices for inspection, and notification and inspection of cloud storage and image storage facilities, with prohibitions on interfering with monitoring software and use of private browsing modes.

Holding and Implications

The appeal was ALLOWED to the extent of amending the terms of the Sexual Harm Prevention Order. The sentence and all other ancillary orders remain unchanged.

The court replaced the original SHPO with a revised order reflecting more proportionate and manageable restrictions consistent with established legal guidance, particularly Parsons. This decision limits the imposition of overly broad or administratively burdensome terms where unnecessary, reinforcing the principle that SHPOs must be necessary and proportionate to the individual case.

There are no broader precedential changes beyond reaffirming the application of existing principles and the need for updated expert evidence on technology-related restrictions. The direct effect is to adjust the Appellant's SHPO to terms better suited to his specific offending and risk profile.