PCD Solicitors have recently avoided the making of a Sexual Harm Prevention Order (SHPO) at the sentencing of a client who had pleaded guilty to both making and distributing category C indecent images of children. We explain below what a SHPO is how we avoided such an order for a client.
What is a SHPO?
A SHPO, previously known as Sexual Offence Prevention Order (SOPO) is an order made by the court.
The purpose of a SHPO is to place prohibitions on an offender with a view to protecting the public from further sexual offending.
An SHPO would be made in relation to a person who has been convicted of an offence listed in schedule 3 or 5 of the Sexual Offences Act 2003 in the UK or overseas. No application is required from the police or Crown Prosecution Service for the court to make the order, and the order will only be made where it is suitable upon consideration of the facts of the case.
4,325 SHPO's were made in 2020/21, a decrease of 2% from 2019/2020
What does the court consider when deciding whether to order a SHPO?
In order to make a SHPO the court must be satisfied that the offender presents a risk of sexual harm to the public, and that an order is necessary to protect against that risk. The details of the offending is likely to be key in the court determining whether there is a risk, together with the details of any previous convictions of the offender and the opinion of a probation officer, who can usually be asked by the court to comment on the necessity for a SHPO in their pre-sentence report. The court is open to consider any relevant factors which can include:
1. Would an order minimise the risk of harm to the public or to any particular members?
2. Is it proportionate?
3. Can it be policed effectively?
"A SHPO should not be made for an indefinite period (rather than a fixed period) unless the Court is satisfied of the need to do so."
What prohibitions would the court impose?
The only prohibitions which can be imposed on an offender are those that are necessary. The prohibitions can vary widely from case to case and can include; prohibitions from taking up particular employment, prohibition from accessing certain websites, owning particular storage devices, engaging in certain web activity and even prohibiting contact with children
It is therefore important your legal representatives are aware of the details of the law which can affect a SHPO and the restrictions.
"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."
What happened in our clients case?
PCD Solicitors were instructed at the outset of the case and represented the client at the Magistrates Court. The client was charged with making (downloading) category C indecent images of children and distributing a small amount via KIK Messenger, he accepted the offending and pleaded guilty at his first opportunity. The offences put our client at a risk of custody.
The offences are either way offences, meaning they can be heard by the Magistrates or Crown Court. Our client's case remained in the Magistrates Court and his sentence was determined by a District Judge.
We guided our client through the process of sentence preparation and gathered mitigation in order to achieve the most lenient sentence. The client attended a meeting with his probation officer and a favourable pre-sentence report was prepared.
The Crown Prosecution Service made an application following the first appearance, for a SHPO to be made as part of the client's sentence. The Crown applied for extremely harsh restrictions that we submitted were not relevant to the offending of our client and were either technically impossible or unlawful, the proposed restrictions were as follows:
- Internet conditions, namely prohibitions from using social network other than in his own name or another name that is approved by police prior to use.
- Contact conditions, no unsupervised contact with any child.
- Contact with other registered sex offenders.
The defence accepted that generally a SHPO is available on conviction of our client, as the offences feature in schedule 3 of the Sexual Offences Act 2003. However, took issue with the prohibitions proposed.
The defence drafted lengthy submissions to the court raising several issues with the Crown's SHPO. The submissions included the unlawfulness of the prohibitions and the technical issues with them.
It is unlawful to impose contact restrictions on an offender who has not committed a contact offence. Any prohibitions seeking to prohibit contact with children are made on a purely speculative basis, in that because the offender has viewed indecent images he will go and sexually abuse a child. This is very rarely the case and because the proposed restriction was speculative it was therefore, unlawful.
We submitted to the court that the conditions were also a violation of both our clients Article 8 rights and the Article 8 rights of his children - the right to respect for private and family life. The contact restrictions would have prevented our client from being a father freely to his own children. There was no evidence to support that our client was a threat to his own children. Without the evidence the Crown could not say for certain that any restriction of contact was necessary.
Contact with registered sex offenders also failed to meet the requisite standard for the court to impose the restriction.
Upon considerations of the defence submissions which included legal argument on the proposed SHPO prohibitions and the mitigation of our client, the judge took the view that there was no evidence presented to him which proved that our client was an ongoing risk of further offending. He therefore, took the view that a SHPO was not necessary at all.
The client was made subject to the Sex Offenders Register and will be adequately monitored by the police.
What does this mean for our client?
Our client will continue living freely with his family and will not be subject to any restrictions concerning his children, or any other child. He will continue working and will not be subject to any restrictions on his internet usage, which in turn will not affect his ability to work.
We pride ourselves on the results we achieve, and the rapport we build with our clients which in turn enables us to prepare their case to the highest standard.
"A good firm that know what they're talking about. Claire and Jessica were especially helpful, kind and calmed me down more than once. When they explain something, they take the time to do it well and I knew what to expect throughout the process. The barrister they found for me was excellent and I felt safe with Damian on my side." - Verified Review 2022.
If you are looking for advice in relation to sentencing and the orders a court could impose on you, please contact on of our specialist lawyers on 0151 705 8488 to discus your options and what we can do for you.