PREVENTIVE ORDERS Volume 1
85.3
Basic principles
R v Smith and Others 2011 EWCA Crim 1772, 2012 1 Cr App R (S) 82 (p 468) The Court gave guidance
about SOPOs. Held. para 4 The SOPO offers a flexibility in drafting which is in one sense welcome because
it enables the order to be tailored to the exact requirements of the case. That flexibility, however, must not
lead draftsmen to an inventiveness which stores up trouble for the future. It will do this if it creates a
provision which is, or will become, unworkable. That may be because it is too vague or because it
potentially conflicts with other rules applicable to the defendant, or simply because it imposes an
impermissible level of restriction on the ordinary activities of life. The SOPO must meet the twin tests of
necessity and clarity. The test of necessity brings with it the subtest of proportionality.
85.36
Precise and capable of being understood, Order must be
R v Smith and Others 2011 EWCA Crim 1772, 2012 1 Cr App R (S) 82 (p 468) The Court gave guidance
about SOPOs. Held. para 5 As to clarity, a convenient analogy is the framing of an injunction in a civil
court, which also attracts the sanction of imprisonment. The terms of a SOPO must be sufficiently clear on
their face for the defendant, those who have to deal with him in ordinary daily life, and those who have to
consider enforcement, to understand without real difficulty or the need for expert legal advice exactly what
he can and cannot do. Real risk of unintentional breach must be avoided, R v Hemsley 2010 EWCA Crim
225.
85.37
Police search and seizure orders
R v Smith and Others 2011 EWCA Crim 1772, 2012 1 Cr App R (S) 82 (p 468) para 20 iii) Some courts
have been attracted to a prohibition upon the possession of any computer or other device giving access to
the Internet without notification to the local police. It may be that this might occasionally be the only way
of preventing offending, but the vast increase in the number and type of such devices makes it onerous both
for defendants and the police. Its effect is, inter alia, to require the defendant to tell the police when he buys
a new mobile telephone, or a play station for his children. In most cases the police will need to work on the
basis that most defendants, like most people generally, will have some devices with Internet access, and
that a requirement that they be notified of it adds little of any value.
85.47 Child contact prohibitions
The appropriate age for prohibitions is 16
R v Smith and Others 2011 EWCA Crim 1772, 2012 1 Cr App R (S) 82 (p 468) The Court gave guidance
about SOPOs. Held. para 21 Any provision in a SOPO must be tailored to the necessity to prevent sexual
offending which causes serious harm to others. The majority of offences relating to children are committed
only when the child is under the age of 16. The exceptions are offences committed under Sexual Offences
Act 2003 s 16-19 against those in respect of whom the defendant stands in a position of trust, as defined in
section 21, together with family offences under sections 25 and 26. If the risk is genuinely of these latter
offences, prohibitions on contact with children under 18 may be justified. Otherwise, if contact with
children needs to be restricted, it should relate to those under 16, not under 18. para 22.
85.48
Is the order appropriate?
R v Smith and Others 2011 EWCA Crim 1772, 2012 1 Cr App R (S) 82 (p 468) The Court gave guidance
for ordering SOPOs. Held. para 22 Care must be taken in considering whether prohibitions on contact with
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children are really necessary. In R v Lea 2011 EWCA Crim 487, the defendant had been convicted of
offences of viewing child pornography. The SOPO imposed contained provisions prohibiting him from
having unsupervised contact with any child under the age of 16 except in the presence of a parent or
appropriate adult, and from permitting any such person to be in any house where he lived or stayed. This
court rejected the submission of the Crown that those provisions were justified in case the defendant
graduated to contact offences. There was no indication whatever of any likelihood of such progression. The
case is a good example of overuse of a SOPO. Preventive these orders are; it does not follow that anything
is permissible. It is not legitimate to impose multiple prohibitions on a defendant just in case he commits a
different kind of offence. There must be an identifiable risk of contact offences before this kind of
prohibition can be justified.
para 23. Prohibitions on contact with children may however be necessary in some cases of predatory
paedophiles who seek out children for sexual purposes. Even then, care must be taken with their terms. The
defendant may have children of his own, or within his extended family. If his offences are within the family,
or there is a risk that offences of that kind may be committed, then those children may need protection. But
if they are not, and there is no sign of a risk that he may abuse his own family, it is both unnecessary and
an infringement of the children's entitlement to family life to impose restrictions which extend to them.
Even if there is a history of abuse within the family, any order ought ordinarily to be subject to any order
made in family proceedings for the very good reason that part of the family court process may, if it is
justified, involve carefully supervised rehabilitation of parent and child.
24. In those cases where it really is necessary to impose a prohibition on contact with children (of whichever
age) it is essential to include a saving for incidental contact such as is inherent in everyday life. Otherwise
the defendant commits a criminal offence if he is dealt with by a 15-year-old at a shop checkout, or has
dealings with a child in other similarly inevitable circumstances. The inevitably imprecise nature of this
essential saving is a further reason for exercising considerable caution before imposing a prohibition of this
kind. One possible form providing for such a saving is set out in the case of Clarke below at paragraph
33(5) of this judgment.
85.48a Child contact prohibitions
requirements sufficient?
Is the order appropriate?
Are
the
notification
R v Smith and Others 2011 EWCA Crim 1772, 2012 1 Cr App R (S) 82 (p 468) The Court gave guidance
about SOPOs. Held. para 25 i) [Child prohibitions] must be justified as required beyond the restrictions
placed upon the defendant by the [now called Disclosure and Barring Service]. If there is a real risk that
[the defendant] may undertake some activity outside the ISA prohibitions, then such a term may be justified.
Otherwise it is not. What is covered by the Safeguarding Vulnerable Groups Act 2006 needs examination
in each case. The key provisions are to be found in section 5 and Schedule 4 Part 1, which defines regulated
activities relating to children. Generally speaking, para 2 prevents the defendant from engaging in any form
of teaching, training or instruction of children, any form of care, advice, guidance or therapy, and from
acting as a driver for children's activities. That will cover most unpaid as well as formal paid occupations
which carry a risk of contact offences. It will for example cover football or other sports clubs and youth
groups. We suggest that judges should ordinarily require the Crown to justify an application for a SOPO
term relating to activity with children by demonstrating what the risk is which is not already catered for by
the Safeguarding Vulnerable Groups Act 2006.
85.49
Child contact prohibitions
The appropriate form of words
R v Smith and Others 2011 EWCA Crim 1772, 2012 1 Cr App R (S) 82 (p 468)
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Add at end of summary.
para 43 We substitute, 1) having any unsupervised contact or communication of any kind with any female
under the age of 18, other than:
i)
such as is inadvertent and not reasonably avoidable in the course of lawful daily life, or
ii)
with the consent of the child's parent or guardian (who has knowledge of his convictions) and
with the express approval of Social Services for the area.
2) using any device capable of accessing the internet unless:
i)
it has the capacity to retain and display the history of internet use, and
ii)
he makes the device available on request for inspection by a police officer;
3) deleting such history;
Note: Terms special to the defendant have been omitted. Ed.
(6) possessing any device capable of storing digital images unless he makes it available on request for
inspection by a police officer."
85.49a Child contact prohibitions
The appropriate age for prohibitions is 16
R v Jackson 2012 EWCA Crim 2602 D pleaded to voyeurism, indecent photographs of a child and
possession of extreme photographs. Held. The reference to ‘persons under 18’ was not suitable. We
substitute for an excessive term, ‘Having any unsupervised contact of any kind with anyone under the age
of 16 other than i) one such as is inadvertent and not reasonably avoidable in the course of lawful daily life;
or ii) with the consent of the child’s parent or guardian who has knowledge of his convictions.’
R v B 2016 EWCA Crim 488 D pleaded to child sex offences against V, who at the time of the offending
was aged 14 and D was aged 21. V was vulnerable. While V’s relationship with D continued her relationship
with her family deteriorated sharply. When bailed, D ignored a bail term and continued to have sex with V.
V wrote supportive letters for D and refused to support the prosecution. The Judge found D had exercised
controlling behaviour over V. D received 3 years 7 months. The prosecution asked that the SOPO should
prohibit contact until V was aged 18 as V was particularly vulnerable and needed protection. The Judge did
so. Held. We too want to protect the victim. However, we see no reason to depart from the clear guidance
in R v Smith 2011 and have no option but to substitute ‘aged 16’ for ‘aged 18’.
85.69a Internet/Computer prohibitions
Basic principles
R v Smith and Others 2011 EWCA Crim 1772, 2012 1 Cr App R (S) 82 (p 468) The Court gave guidance
about SOPOs. Held. para 20 i) A blanket prohibition on computer use or Internet access is impermissible.
It is disproportionate because it restricts the defendant in the use of what is nowadays an essential part of
everyday living for a large proportion of the public, as well as a requirement of much employment. Before
the creation of the Internet, if a defendant kept books of pictures of child pornography it would not have
occurred to anyone to ban him from possession of all printed material. The Internet is a modern equivalent.
ii) Although the R v Hemsley 2010 EWCA Crim 225 formulation restricting Internet use to job search,
study, work, lawful recreation and purchases has its attractions, on analysis [it has] the same flaw, albeit
less obviously. Even today, the legitimate use of the Internet extends beyond these spheres of activity. Such
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a provision in a SOPO would, it seems, prevent a defendant from looking up the weather forecast, from
planning a journey by accessing a map, from reading the news, from sending the electricity board his meter
reading, from conducting his banking across the web unless paying charges for his account, and indeed
from sending or receiving e-mail via the web, at least unless a strained meaning is given to 'lawful
recreation'. The difficulties of defining the limits of that last expression seem to us another reason for
avoiding this formulation. More, the speed of expansion of applications of the Internet is such that it is
simply impossible to predict what developments there will be within the foreseeable lifespan of a great
many SOPOs, which would unexpectedly and unnecessarily, and therefore wrongly, be found to be
prohibited.
iii) see 85.37.
iv) There are fewer difficulties about a prohibition on Internet access without filtering software, but there
is a clear risk that there may be uncertainty about exactly what is required and the policing of such a
provision seems likely to be attended by some difficulty.
v) Of the formulations thus far devised and reported, the one which seems to us most likely to be effective
is the one requiring the preservation of readable Internet history coupled with submission to inspection on
request. There is no need for the SOPO to invest the police with powers of forcible entry into private
premises beyond the statutory ones which they already have. It is sufficient to prohibit use of the Internet
without submitting to inspection on request. If the defendant were to deny the officers sight of his computer,
either in his home or by surrendering it to them, he would be in breach. One suitable form of such an order
appears in Smith below.
vi) Where the risk is not simply of downloading pornography but consists of or includes the use of chatlines
or similar networks to groom young people for sexual purposes, it may well be appropriate to include a
prohibition on communicating via the Internet with any young person known or believed to be under the
age of 16, coupled no doubt with a provision such as we mention in (v). In some such cases, it may be
necessary to prohibit altogether the use of social networking sites or other forms of chatline or chatroom.
See for an example R v Clarke 2011 case at para 33(3) of this judgment.
85.71
Internet/computer prohibitions Specimen prohibitions
R v McDonald 2015 EWCA Crim 2110, 2016 1 Cr App R (S) 48 (p 307) The Judge imposed a standard R
v Smith 2011 computer prohibition terms (see above). The defence argued that police would be able to see
e-mails from his solicitors. Held. para 20 Neither defence counsel or any member of this Court has found
any authority in which the standard R v Smith 2011 approved prohibition has been challenged. Appeal
dismissed.
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