A Sexual Harm Prevention Order (‘SHPO’) is an order of the Court following a conviction for various offences listed by legislation and contains prohibitions restricting the activities of the defendant for a specified period of at least five years and may even be imposed for an indefinite period.

In recent months the Court of Appeal has considered a number of cases in relation to prohibitions imposed and the length of several SHPOs.   

Helen Holder of Kangs Solicitors reports upon some of these cases. 

Kangs Solicitors has a proven track record spanning more than twenty years of successfully representing clients accused of sexual and domestic offences of every nature.  Additionally, we are accustomed to making applications on behalf of our clients seeking to revoke or vary a variety of 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 in Band 1 and Tier 1 for our work in this area by both the leading legal directories Chambers UK and the Legal 500.

Our reputation as a leading criminal defence firm is further recognised by two further awards:

We appreciate the strain on individuals and their families when facing allegations of a sexual or domestic nature and we are here to assist you to alleviate such difficulties and pressures.

Our team can be contacted for confidential and discrete advice as follows:

Sexual Harm Prevention Orders | Kangs Sexual Offences Defence Team

A SHPO can be made by either the Crown Court or the Magistrates’ Court following a conviction for an offence that is listed in either Schedule 3 (i.e. sexual offences such as rape, sexual assault or indecent images of children) or Schedule 5 (i.e. generally violent offences such as murder or GBH) of the Sexual Offences Act 2003. 

Application for a SHPO can also be made by the Chief Officer of Police or the Director General of the National Crime Agency by complaint to a Magistrates’ Court. 

A SHPO will be made where:

  • the court is satisfied that it is necessary to make such an Order for the purpose of:
    • protecting the public or any particular members of the public from sexual harm from the defendant, or
    • protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

A SHPO will impose prohibitions upon the Defendant such as restricting access to the internet or contact with children. 

A SHPO cannot impose any conditions which require a positive act to be done. 

When making an Order, the Sentencing Council outlines the Court may want to consider whether or not the Order:

  • would minimise the risk of harm to the public or to any particular members of the public,
  • is proportionate, 
  • can be policed effectively.      

Recent Court of Appeal Judgments | SHPO Defence Solicitors

R v Howarth [2021] EWCA Crim 445

Judgment in this case was handed down in March 2021 and concerned the length of time a SHPO was made for. 

In September 2020, Howarth was sentenced to a Community Order for offences of making indecent images of children.  He was made the subject of an indefinite SHPO.  His sentence was appealed but limited to one aspect, the unlimited duration of the Order.  

The defence submitted that an Order unlimited by length was unjustified in this case due to the nature and extent of the offending, Howarth’s lack of previous convictions and the Risk Assessment made by Probation in the preparation of the Pre-Sentence Report. The defence submitted the appropriate length for the SHPO should be five years.

The Crown agreed that an SHPO of unlimited length was not justified but argued the appropriate duration should be seven years.

The Court of Appeal referred to the older case of R v McLellan [2017] EWCA Crim 1464 which stated:

‘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. An indefinite SHPO should not be made without careful consideration or as a default option. Ordinarily, as a matter of good practice, a Court should explain, however briefly, the justification for making an indefinite SHPO, though there are cases where that justification will be obvious.’

In the case of Howarth, the Court was satisfied that the imposition of an indefinite order was neither necessary or proportionate and reduced it to seven years. 

R v Alison [2021] EWCA Crim 324

In February 2021, Judgment in this case was published regarding the terms of the prohibitions in a SHPO.

Alison was convicted of offences of making indecent images and was sentenced to a suspended prison sentence and made the subject of a SHPO.  He appealed against his conviction, which was unsuccessful, and also appealed the terms of the SHPO.                

The first prohibition in Alison’s SHPO stated:

‘The defendant is prohibited from:

  1. Having any unsupervised contact with any child under the age of 16 years without prior permission of the child’s parent/guardian, children’s services and police. This prohibition does not operate to prohibit contact with children which is inadvertent and unavoidable in the course of the defendant’s lawful daily activities, e.g. whilst a passenger on public transport.’

By way of appeal it was argued was that as Alison’s offending had not involved contact with children and was limited to viewing offences, it was disproportionate to prohibit such contact. 

The Court referred to the earlier case of R v Smith [2011] EWCA Crim 1772 which stated:

  • “Care must be taken in considering whether prohibitions on contact with children are really necessary.

In Lea (supra) the defendant had been convicted of offences of viewing child         pornography. The SHPO 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 SHPO and shows that it does not necessarily 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.

  • 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.”

In the case of Alison, the Appeal Court concluded that this is a viewing case and there is no other factor that anybody can point to which justified the sort of prohibition such as prohibition 1.  Therefore, the appeal was successful and the prohibition was deleted.

How Can We Help? | Restraining Order & Sexual Offences Defence Solicitors

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

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. 

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 | 07989 521210

Sukhdip Randhawa
srandhawa@kangssolicitors.co.uk
020 7936 6396 | 0121 449 9888 | 07989 521210

Amandeep Murria
amurria@kangssolicitors.co.uk
0161 817 5020 | 0121 449 9888 | 07989 521210