In January 2022 the Court of Appeal heard an appeal against the imposition of a Sexual Harm Prevention Order (‘SHPO’) upon the Appellant which was due to run for a period of five years.

 The offensive material was seized in October 2017 but the Appellant was not charged until June 2020.

Helen Holder of Kangs Solicitors outlines the circumstances and the Judgment.

Kangs Solicitors has a proven track record spanning more than twenty years of successfully defending clients accused of sexual and domestic offences of every nature and also obtaining the revocation and variation of Court Orders including SHPOs and Restraining Orders.

For our recent successful track record in such cases, please refer to the following links:

Additionally, we have acted in many high-profile investigations relating to alleged sexual misconduct such as the wide-ranging Metropolitan Police investigation ‘Operation Yewtree’.

Kangs Solicitors is recognised as one of the leading criminal defence firms in the country and we are top ranked by both the leading legal directories Chambers and Partners and the Legal 500.

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The Appeal in Focus | Hamilton [2022] EWCA Crim 127 | Kangs Sexual Prevention Order Solicitors

The circumstances.

  • In October 2017 police seized from the Appellant’s home devices including a laptop, phones and a hard drive upon which 194 indecent images of children were discovered. Of those images 68 were classed as Category A, 84 as Category B and 42 as Category C.
  • These images had been downloaded by the Appellant when he was sixteen years old and he was not charged until June 2020. 
  • Although he initially claimed that the images had automatically downloaded without his knowledge, he entered a guilty plea on the first day of his Trial. 
  • Amongst the penalties imposed upon the Appellant were
  • a 12-month Community Order with a condition to complete 80 hours of unpaid work
  • 15 days Rehabilitation Activity Requirement.
  • forfeiture of the devices
  • a Sexual Harm Prevention Order for a period of five years which resulted in him being subject to the Notifications Requirements, also for a period of five years.             

The Appeal.

The Appellant appealed against the imposition of the SHPO.

A SHPO can only be imposed when:

  • an offender has committed an offence listed in Schedule 3 of the Sexual Offences Act 2003 (‘the Act’) AND
  • it is necessary for the purpose of protecting the public or any particular members of the public from sexual harm. 

The Appellant had pleaded guilty to offences listed in Schedule 3 of the Act and therefore the Court of Appeal had to decide whether the Sentencing Court was right to conclude that the SHPO was necessary in this case.

The Court of Appeal considered a number of factors including:

  • the Appellant was sixteen years old when the offences were committed and was now twenty-one years old,
  • there had been an extreme delay of four years in prosecuting the Appellant, during which time there had been no repeat offending by him,
  • whether the Sentencing Court was right to conclude that the SHPO was necessary in this case, given that the Appellant had pleaded guilty to offences listed in Schedule 3 of the Act,
  • evidence that the Appellant had subsequently matured in that time and had expressed his desire to join the army.
  • the Pre-Sentence Report did not identify a high risk of re-offending,
  • the offensive images were relatively few in number.

The Judgment.

  • The Court of Appeal decided that there was not sufficient evidence to justify the making of the SHPO order in this case. 
  • The SHPO was quashed with the consequence that the Notification Requirements were also removed.

Points of Wider Interest.

  • It is important to note that the Court of Appeal expressly stated that SHPOs are often necessary for offences of this nature but not invariably so.  Each case must be looked at on its merits. 
  • The Court also noted that the draft SHPO had only been uploaded to the court’s digital case system an hour before the Sentencing Hearing and stated that this was a common theme in cases appearing before it of late.   This late service of draft orders causes the defence and the Judge significant difficulties.  The Criminal Procedure Rules require applications to be uploaded in good time in order for them to be considered by all parties. 

When this does not happen there is a real risk that the issue will not be properly addressed during the course of any subsequent hearing and that orders will be made in inappropriate terms or where unnecessary.”

How Can We Help? | Kangs Sexual Offences Defence Solicitors

If you are, or feel, that you may be made subject to a SHPO, it is important that you are guided by experts experienced in assisting clients who have been subjected to such Orders.

Kangs Solicitors understands the impact a SHPO has upon a person’s life. It is important to appreciate that a criminal sentence will not become spent whilst a SHPO remains in force.

Notification requirements will last for as long as the Order and it is a criminal offence, punishable with imprisonment, to breach a SHPO or the notification requirements. 

Kangs Solicitors has a proven track record in successfully assisting clients accused or charged with sexual offences or those who seek to challenge ancillary orders that are imposed as part of the sentence for a variety of cases including sexual offences and harassment offences

It is essential to instruct experienced solicitors to ensure that your rights are fully protected.

Arrangements can be made to meet at any of our offices in Birmingham, London and Manchester.

Please feel free to contact our team through any of the following who will be happy to speak to you and guide you:

Helen Holder
hholder@kangssolicitors.co.uk
0121 449 9888 | 0161 817 5020

Suki Randhawa
srandhawa@kangssolicitors.co.uk
0121 449 9888 | 020 7936 6396

Amandeep Murria
amurria@kangssolicitors.co.uk
0161 817 5020 | 020 7936 6396