Parsons, R v, Court of Appeal - Criminal Division, December 20, 2017,  EWCA Crim 2163
|Resolution Date:||December 20, 2017|
|Issuing Organization:||Criminal Division|
|Actores:||Parsons, R v|
Neutral Citation Number:  EWCA Crim 2163
Case No: 201702412 A3 and 201702442 A3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWES CROWN COURT (PARSONS)
ON APPEAL FROM WORCESTER CROWN COURT (MORGAN)
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE GROSS
MR JUSTICE TEARE
MR JUSTICE KERR
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(Transcript of the Handed Down Judgment.
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Simon Heptonstall (instructed by Crown Prosecution Service, Appeals and Review Unit) for the Crown
Paul Luttman (instructed by David Street & Company) for the Appellant Parsons
Mark Thompson (instructed by Coulson Read Lewis Solicitors) for the Appellant Morgan
Hearing date : 23 November, 2017
As Approved by the Court
Crown copyright ©
Lord Justice Gross : INTRODUCTION
This is the judgment of the Court to which we have all contributed.
The two separate cases before the Court have been listed together. Both concern prohibitions on internet access and use imposed by Sexual Harm Prevention Orders (``SHPOs''). The question arises as to whether the guidance given in R v Smith  EWCA Crim 1772;  1 WLR 1316, the leading case as to restrictions on internet access and use under the predecessor Sexual Offences Protection Orders (``SOPOs''), requires adaptation in the light of developments in technology and everyday life. A further question is whether the decision in R v McLellan and Bingley  EWCA Crim 1464 applies to SHPOs, mutatis mutandis, as well as to SOPOs.
The legislation governing SHPOs is found in ss. 103A and following of the Sexual Offences Act 2003 (``the Act''). Whereas a SOPO could only be imposed where necessary to guard against a risk of ``serious'' sexual harm, it is apparent that a SHPO can be imposed where necessary to protect ``....the public or any particular members of the public'' from sexual harm, simpliciter: s.103A(2)(b)(i). This change has already been reflected in R v NC  EWCA Crim 1448, amending the questions posed in Smith (at ) to be considered by a Court when considering the imposition of a SHPO. As formulated in NC, at , those questions are now as follows:
`` (i) is the making of an order necessary to protect the public from sexual harm through the commission of scheduled offences?; (ii) if some order is necessary, are the terms imposed nevertheless oppressive?; (iii) overall, are the terms proportionate? ''
A further change under the SHPO regime is that ``child'' now means a person under 18, rather than a person under 16: s.103B(1).
At the outset, we underline the following:
i) First, as with SOPOs, no order should be made by way of SHPO unless necessary to protect the public from sexual harm as set out in the statutory language. If an order is necessary, then the prohibitions imposed must be effective; if not, the statutory purpose will not be achieved.
ii) Secondly and equally, any SHPO prohibitions imposed must be clear and realistic. They must be readily capable of simple compliance and enforcement. It is to be remembered that breach of a prohibition constitutes a criminal offence punishable by imprisonment.
iii) Thirdly, as re-stated by NC (supra), none of the SHPO terms must be oppressive and, overall, the terms must be proportionate.
iv) Fourthly, any SHPO must be tailored to the facts. There is no one size that fits all factual circumstances.
The present matters raise individual questions of wider importance going to:
i) Blanket bans on internet access and use;
ii) Where children are concerned, whether the prohibition should extend to those under 18 or those under 16 (``the question of age'');
iii) Risk management monitoring software;
iv) ``Cloud storage'';
v) Encryption software;
vi) The application of the decision in McLellan and Bingley to SHPOs.
We take each in turn.
(1) Blanket bans on internet access and use: While eschewing any attempt to lay down a rule for all cases (see ), the Court in Smith made plain its disapproval in general of such blanket bans. Hughes LJ (as he then was), said this (at  (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.....''
We respectfully agree, adding only that the importance of the internet for everyday living has increased considerably even since the decision in Smith. We accept the broad thrust of Mr Thompson's submission on behalf of Morgan, namely, that the need for an individual to be able to access the internet and to possess devices capable of accessing the internet, has become ``the established norm''. The internet is now an integral part of social life, of commercial transactions and is very much encouraged in dealings between an individual and government departments or local authorities. The massive expansion of social media further highlights developments in this regard.
While we agree with Mr Heptonstall for the Crown and would be unwilling to say that a blanket ban on internet access and use can ``never'' be justified, we cannot envisage that such a prohibition would be appropriate in anything other than the most exceptional cases. In all other cases, a blanket ban would be unrealistic, oppressive and disproportionate - cutting off the offender from too much of everyday, legitimate living.
(2) The question of age: We have already drawn attention to the fact that the SHPO regime defines a child as a person under 18: s.103B(1) of the Act. Although, at first blush, this may seem surprising because much sexual offences legislation is focused on prohibitions in respect of activity or relationships with those under 16, that is not always so and some legislation is directed to the protection of those under 18. See the discussion in Smith, at .
Two further examples suffice. First, for the purposes of the offence of making an indecent photograph of a child, contrary to s.1(1) of the Protection of Children Act 1978 (``the 1978 Act''), a child is defined (by s.7(6) of the 1978 Act) as a person under the age of 18. Secondly, the same definition of a child is adopted in respect of the offence of possession of an indecent photograph of a child, contrary to s.160(1) of the Criminal Justice Act 1988 (``the 1988 Act'') - albeit that s.160A of that Act provides a specific defence for images of a child over 16 with whom the defendant was in a marriage, civil partnership or with whom the defendant was living together as part of an enduring family relationship.
Against this background, we can see no objection in principle to a prohibition geared to those under 18 - a matter plainly contemplated by the Act in respect of SHPOs. That said, we can readily understand that the facts of an individual case might point towards confining prohibitions to children under 16 (for the reasons given in Smith, at ).
(3) Risk management monitoring software: Under this heading and in respect of the discussion of ``cloud storage'' and encryption software (below), we acknowledge our gratitude to Mr Caithness, an expert instructed following prompting by the Court and who produced, at short notice, effectively agreed reports of the 21st and 24th November, 2017.
Mr Caithness took ``risk management monitoring software'' to mean:
`` ...software which monitors the use of a computing device (including but not limited to: PCs, smart phones and tablets) for prohibited behaviours such as:
4.1 the installation of restricted software
4.2 access to prohibited resources (whether stored locally on the device or on the web)
4.3 attempts to change the device's software settings or hardware configuration''
The software may simply record that the prohibited action took place or it may block the activity altogether.
As explained by Mr Caithness, such software is most widely used within businesses to mitigate the risks posed by employee misconduct - which may damage the company's reputation (e.g., by accessing pornographic websites) or result in a leak of the company's intellectual property. In a corporate environment, these software solutions would usually be controlled centrally by the IT department. Mr Caithness went on to add that monitoring software could also be used at home, with a view (for example) to preventing children from accessing inappropriate and pornographic content.
Mr Caithness added the following observations as to risk management monitoring software:
``8. Installing these solutions onto each device...to be monitored generally requires either that the device is under administrative control of a corporate network or that physical and administrative access is provided to the...
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