Valentine, R. v

Factual and Procedural Background

The Crown Court at The City convicted the Appellant on 2 December 2024 of indecent assault (s.14 Sexual Offences Act 1956; Count 1), assault of a child under 13 by penetration (s.6 Sexual Offences Act 2003; Count 2) and two counts of assault by penetration (s.2 Sexual Offences Act 2003; Counts 3 and 4). No evidence was offered on Counts 5–7 (making indecent photographs of children) and Count 8 (possession of prohibited images of a child); verdicts of not guilty were entered on those counts. On 7 February 2025 the sentencing judge imposed an extended determinate sentence totalling 13 years (9 years custody and 4 years extended licence) and made ancillary orders: a Sexual Harm Prevention Order (SHPO) until further order, a Restraining Order until further order, and a Deprivation/Forfeiture order in respect of seized electronic devices. The Appellant (then aged 57) does not appeal the custodial sentence; leave was granted to appeal the ancillary orders.

The offences in Counts 1–4 involved two female complainants. The offending in Count 1 (Complainant 1) occurred in 2002–2004 when she was 10–11. Counts 2–4 concerned Complainant 2 with multiple incidents of digital penetration between ages 6–14. The pre-sentence report recorded the Appellant's non-acceptance of the verdicts, assessed him as presenting a high risk of serious sexual harm to young girls, and noted no previous convictions (one caution for battery in 2005). The Crown applied for the SHPO, Restraining Order and a Deprivation Order for seized devices (an Apple iPhone, two laptops and a storage device). Attorney Acworth represented the Appellant at sentence and on appeal.

Legal Issues Presented

1. Whether the Deprivation Order in respect of devices was lawfully made given acquittals on Counts 5–8 and the statutory test in s.153 Sentencing Act 2020 (whether property was used for, facilitated, or intended to facilitate offending).
2. Whether paragraphs 5 and 6 of the SHPO (compulsory production/inspection of electronic devices and prohibition on refusing police access to premises/vehicles) were justified and necessary, and whether an indefinite SHPO was appropriate.
3. Whether the Restraining Order (prohibiting any contact with Complainant 1 and Complainant 2) was properly made and whether an indefinite duration was justified.

Arguments of the Parties

Appellant's Arguments (Attorney Acworth)

• The Judge erred in principle by proceeding on a basis that relied on Counts 5–8, of which the Appellant was acquitted, contrary to the principle in R v Ayensu.
• The Deprivation Order was unjustified because there was no basis to find the Appellant intended to use the devices to commit or facilitate offences (s.153(3) Sentencing Act 2020).
• The SHPO terms in paragraphs 5 and 6 were unnecessary given the acquittals on device-related counts; an indefinite SHPO was inappropriate and unjustified (relying on R v McLennan and Bingley on indefinite SHPOs).
• The Restraining Order failed the statutory "purpose" test in s.360 Sentencing Act 2020 and, in practice, should be subject to a necessity-type scrutiny; the case for the order as to Complainant 1 in particular was weak and indefinite duration disproportionate.

Crown's Arguments

• The Crown sought the SHPO, Restraining Order and Deprivation Order based on material seized from the devices and the conclusions in the pre-sentence report indicating ongoing risk and relevance of the devices.
• The Crown relied on the statutory powers in the Sentencing Act 2020 to support deprivation/forfeiture of devices and to obtain protective orders for victims.

Table of Precedents Cited

Court's Reasoning and Analysis

The court accepted the gravity of the proven offending and the sentencing judge's finding of dangerousness, as supported by the victim personal statement and pre-sentence report. Nevertheless, the court analysed each ancillary order against statutory tests and established principles.

Deprivation Order: The court held that the judge erred in principle by basing the Deprivation Order in substance on device-related conduct corresponding to Counts 5–8, of which the Appellant was acquitted. Applying the principle in R v Ayensu, the sentencer must not proceed on the basis that the Appellant was guilty of those counts. The court concluded the judge could not properly find that the devices were intended to be used for or to facilitate offending under s.153(3)(b) Sentencing Act 2020; the judge's reasoning that the material gave "buoyancy and life" to a preoccupation did not suffice to establish intent. The Deprivation Order was therefore set aside.

SHPO (paragraphs 5 and 6): The court found the prohibitions requiring production/login details of electronic devices and allowing police access to premises/vehicles were similarly founded on conduct tied to the acquitted counts and thus failed the statutory necessity test in s.343 Sentencing Act 2020. The court concluded those prohibitions were not justified and deleted paragraphs 5 and 6. Regarding duration, the court held that an indefinite SHPO was not justified on the record and substituted a fixed duration of 15 years (applying guidance from R v McLennan and Bingley).

Restraining Order: The court reviewed s.360 Sentencing Act 2020 and concluded it did not impose a separate test of necessity beyond the statutory purpose (protecting victims from harassment or fear of violence) but left its imposition to judicial discretion. Given the findings of dangerousness and the context, the court was not persuaded the judge erred in making the Restraining Order as to Complainant 1 and Complainant 2, although it found no basis for an indefinite duration. The court exercised its discretion to substitute a 15-year duration for the Restraining Order.

Holding and Implications

Core Ruling: The appeal is allowed in part.

The court's orders:

• Set aside the Deprivation Order in respect of the seized devices.
• Delete paragraphs 5 and 6 of the Sexual Harm Prevention Order and vary the SHPO duration to 15 years.
• Vary the duration of the Restraining Order to 15 years.

Implications: The decision reverses the Deprivation Order and narrows the SHPO terms and durations of protective orders in this case. The court applied established authorities (notably R v Ayensu and R v McLennan and Bingley) to emphasise that ancillary orders must not be founded on counts of which a defendant has been acquitted and that indefinite protective orders require clear justification. The opinion does not purport to establish a new legal principle beyond the application of existing authorities; its effect is to vary the orders in this case as set out above. The court also confirmed the statutory surcharge provisions did not apply.