Full internet ban for sex offenders ruled unlawful

12 August 2011 by Maria Roche

Regina v Smith & Others [2011] EWCA Crim 1772  Read Judgment

UPDATED NOVEMBER 2013 | In a detailed judgment, the Court of Appeal has emphasised the importance of a sentencing court considering whether making a Sexual Offences Prevention Order is necessary and, if so, tightly drafting its terms to be proportionate and not oppressive. 

The Court of Appeal (Criminal Division) also made clear that a total ban on internet use would always be disproportionate. It considered four cases in which the terms of the Sexual Offences Prevention Order  [‘SOPO’] were challenged by the Appellants, none of whom had been charged with offences involving physical sexual contact.

The powers of the Court in relation to SOPOs are contained in ss. 104 -113 of the Sexual Offences Act 2003 [‘SOA 2003’].   A SOPO contains specific prohibitions designed to protect the public from serious sexual harm and remains in effect for the period specified in the order.  The order prohibits the offender from doing anything contained in the order and accordingly they contain only restrictions, but no affirmative duties.   Breach of any of the restrictions is a criminal offence carrying up to five years’ imprisonment and a SOPO may be in place for many years.  As such, a SOPO could have a draconian effect on an offender for a substantial period of time.

Principles

When may a Court grant a SOPO?

The Court noted that whist a SOPO was a valuable tool in the control of sexual offending, as had been noted in R v R & C [2010] EWCA Crim 907, they were often too hastily and inadequately drafted and provided at a late stage in the sentencing process.    Whilst the SOPO offered a flexibility in drafting, the court warned that:

The flexibility of the order, 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.”

The Court reminded future sentencing courts that an SOPO may only be made under section 104(1) if 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 serious sexual harm from the defendant.”

Serious sexual harm differs from sexual harm so a SOPO may not be used to prohibit unusual, or even socially unacceptable, sexual behaviour unless it is likely to lead to the commission of offences set out in Schedule 3 of SOA.  The risk of such serious sexual harm must real and not remote.

Further, clarity is important, not only for the offender but also for those who must deal with him in real life and those who must enforce the Order and to avoid the real risk of unintentional breach.

What must a Court consider when making a SOPO?

The Court reiterated that the three questions identified by the Court of Appeal in  R v Mortimer [2010] EWCA Crim 1303 must be addressed when making a SOPO:

1. Is the making of an order necessary to protect from serious sexual harm through the commission of scheduled offences ?
2. If some order is necessary, are the terms proposed nevertheless oppressive?
3. Overall are the terms proportionate?

Interaction with other sentencing regimes:

The Court also reminded sentencing courts that when considering the imposition of SOPOs,  a defendant convicted of sexual offences is likely to be subject to at least three other relevant regimes. The statutory test of necessity is not met if a SOPO merely duplicates such a regime. A SOPO must not interfere with such a regime. The following regimes must be considered:

1. The sex offender notification rules;
2. Disqualification from working with children; and
3. Licence on release from prison.

Additionally, the Court considered that the usual rule ought to be that an indeterminate sentence needs no SOPO, at least unless there is some very unusual feature which means that such an order could add something useful and did not run the risk of undesirably tying the hands of the offender managers later.  The prevention of further offences should be left to the fixing of licence conditions as part of the indefinite sentence.

Further, it would not normally be a proper use of the power to impose a SOPO to use it to extend notification requirements beyond the period prescribed by S.82 of SOA 2003.  It does not follow, however, that the duration of a SOPO ought generally to be the same as the duration of notification requirements. Although the SOPO must operate in tandem, notification requirements and the conditions of a SOPO are different. The first require positive action by the defendant, who must report his movements to the police. The second prohibit him from doing specified things. Ordinarily there ought to be little or no overlap between them.  There is therefore no objection for an SOPO to extend beyond the notification requirements and it is also permissible in law for the SOPO to run for less than an indefinite period even when the notification requirements endure forever.

Extent of the SOPO:  Computer Use and Internet Access

The court considered the difficult question of limiting access to computer use in light of the “explosion of everyday internet use by a very large proportion of the public”.   The Court noted that a blanket ban on internet access was impermissible as:

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.”

The Court went on to consider the formula in  R v Hemsley [2010] EWCA Crim 225, which restricts internet use to “job search, study, work, lawful recreation and purchases”.  It considered that whilst such a formula has its attractions, it suffered from the same flaw, albeit less obviously, because it did not reflect modern internet usage or provide for future technological development:

Even today, the legitimate use of the internet extends beyond these spheres of activity. Such 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 Email 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.

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. Most defendants, like most people generally, will have some devices with internet access, so such a requirement woud be both onerous and add little of any value.

The court considered that of all the formulas so far devised:

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… 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.

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 … it may be necessary to prohibit altogether the use of social networking sites or other forms of chatline or chatroom.”

Extent of the SOPO:  Personal Contact with Children

The Court considered that care must be taken in considering whether prohibitions on contact with children are “really necessary”.

The Court noted that any provision must be tailored to the necessity of preventing sexual offending causing serious harm to others.  The majority of such offences occur only when a child is under the age of 16 so, generally, a SOPO should only relate to contact with children under that age.  Only if there was a genuine risk of offences under ss 16-19 of SOA 2003where a defendant stands in a position of trust or family offences under ss 25 – 26 of SOA 2003, would prohibitions on contact with children under the age of 18 be justified.

In cases where it is “really 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.

Further, if there was no risk that offences within a family may be committed then

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”

SOPOs which prohibit the defendant from activities which are likely to bring him into contact with children must be justified as required beyond the restrictions placed upon the defendant by the Independent Safeguarding Authority under the Safeguarding Vulnerable Groups Act 2006.

Procedure:

Procedurally,  it is essential that there is a written draft of the SOPO that can be properly considered in advance of the sentencing hearing. The normal requirement should be that it is served on the court and on the defendant before such a hearing and the Court suggested not less than two clear days before but in any event not at the hearing.

Applying the principles

The Court went on to consider the application of these principles in respect of the four appellants.

In respect of Wayne Clarke, the Court substituted a new indefinite SOPO which removed the blanket ban in internet use, the notification requirements, which prohibited social contact with boys when his offences had been entirely against girls and removed the prohibition of touching underage children as such an act would, in any event, be an offence.

In respect of Bryan Hall, the restriction on living with ‘any person under the age of 18′ was moderated to ‘any female under the age of 18 unless with the express approval of Social Services for the area’; the restriction on any unsupervised contact with a person under the age of 18 was moderated to “any female under the age of 18″ such as is “inadvertent and not reasonably avoidable in the course of lawful daily life or with the consent of the child’s parent or guardian (who has knowledge of his convictions) and with the express approval of the Social Services for the area’.  The restriction of being in possession of a computer/i-phone or mobile without notifying the monitoring police was removed.

In respect of Steven Smith, the SOPO was quashed as he was given an indeterminate sentence for public protection.  Consequently,  those considering his case would remain responsible for the terms and conditions under which he lives, there is nothing useful to which a SOPO could add.

In respect of the 4th Appellant [UPDATE, January 2014 – his conviction was quashed in March 2013] , although the criminal activity for which he was convicted was “as about as low a level as it is possible to encounter in an offence for child pornography”,a SOPO was found to be necessary due to the appellant’s admitted strong sexual attraction to boys in the age range of 10 -15. The court admired the effort of the judge at first instance in attempting to render the internet provisions workable.  However, as that appellant’s life “revolved around the use of computers and the internet” the terms of the SOPO were too widely drawn and “an order requiring a readable history and submission to inspection will better protect against the risk”.

Comment

It is clear those drafting SOPOs in future will need to look very closely at the nature and circumstances of the offences with which the defendant is charged and convicted – for example, the gender of the victims or potential victims of the offender and the risk of progression from viewing offences to contact offences.  SOPOs will need to be tightly drafted after considerable thought.

Questions arise, however, regarding the Court’s rejection of the Hemsley formula.  It is not, for instance, clear why “checking the weather forecast … planning a journey by accessing a map … reading the news … sending the electricity board his meter reading … conducting his banking across the web unless paying charges for his account, and indeed from sending or receiving Email via the web” cannot amount to ‘lawful recreation‘ without  strained construction of the phrase.

It is difficult to see how, when recordable internet histories can be turned on and off for short periods of time using ‘private browsing’ facilities, the terms of the Court’s proposed term that “an order requiring a readable history” can be effectively policed.   The proposed terms do not seem to prevent an offender from using a device belonging to another person (or in an internet cafe), provided it has the capacity to retain and display an internet history.  Locating such a device would be a further barrier for any police investigation.  Additionally, although the SOPO made by the Court prevents the offender “deleting such history”, it is not clear that the offender would be in breach of the SOPO if another person deleted the history.

Although this was a comprehensive review by the Court, it may be that further consideration of the terms of SOPOs, particularly in regard to internet usage, becomes necessary.

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Happy first birthday!

31 March 2011 by Rosalind English

On 31st March a year ago our blog was launched and to celebrate our entry into a second glorious year we thought we’d take a look at what we’ve done that pleased you most.

As with all internet sites, there are no prizes for guessing why Should people with low IQs be banned from sex? comes out with almost the highest number of hits, and no doubt some of the visitors to that page would have gone away disappointed, but we promise it is a fine piece on a very interesting issue. And the high score achieved by our post Brititsh airways strike and human rights – the union strikes back has less to do with law than travellers’ anxieties about their scheduled flights.

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Human rights have disappeared from ‘Working Together’ – Allan Norman

9 April 2013 by Guest Contributor

‘Working Together to Safeguard Children’ is the lead piece of statutory guidance on… well, working together to safeguard children. Originally published in 1999, a new edition was published in 2006 following the changes brought about following the death of Victoria Climbié. And the next edition in 2010 incorporated recommendations of the second Laming Report which followed the death of Baby P. It had grown longer over time, as we all learned lessons from Haringey; but its growing length was causing concern. 

A new version was published last month. The new version was published the week after judgment was handed down in AB & Anor, R (on the application of) v The London Borough of Haringey [2013] EWHC 416 (Admin) (13 March 2013) (my firm represented the Claimants).

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Coroners’ Investigations, Inquests and COVID-19

26 March 2020 by Richard Mumford

The following post was written on the morning of 26 of March 2020. Today, 27th of March, the Chief Coroner brought out Guidance 35 on hearings during the pandemic (no. 35), with the proviso that all these issues will be kept under review.

On the 26th of March the Chief Coroner published Guidance Note 34 (“GN34”) on COVID-19 which can be found here. The Guidance Note addresses many of the issues relating to the impact of COVID-19 on the coronial service. We set out below some answers to questions those involved with the coronial system may currently have in mind, taken from the Guidance Note and other sources (“GN34#(No.)” refers to paragraph numbers in the Guidance Note). 

1) Are Coroners’ Courts conducting hearings at the moment?

GN34#10 provides that “no physical hearing should take place unless it is urgent and essential business and that it is safe for those involved for the hearing to take place. A particular concern is to ensure social distancing in court and in the court building.”

It is also noted that

All hearings that can possibly take place remotely (via whatever means) should do so, and other hearings should continue only if suitable arrangements can be made to ensure distancing although the Chief Coroner accepts that in many jurisdictions this may be difficult. Hearings which must continue should be those considered essential business

Legal aid cuts: Do we spend more on legal aid than other countries?

16 November 2010 by Adam Wagner

Updated | One of the many points of interest from yesterday’s announcement that legal aid is to be cut by £350m per year was the underlying justification, put by Ken Clarke in his announcement, that England and Wales spend more on legal aid than other countries.

The Justice Secretary said that “we currently have one of the most expensive legal aid systems in the world“. But where does this often-quoted statistic arise from?

In its consultation document, the MoJ quotes (at para 3.43) a report commissioned from the University of York into comparative international legal aid systems. The report, Efficiency and quality of justice European Commission for the Efficiency of Justice (CEPEJ); International comparison of publicly funded legal services and justice systems, was produced in October 2009 by Roger Bowles and Amanda Perry. It investigated the legal aid systems in Australia, Canada, France, Germany, Netherlands, New Zealand and Sweden and compared these to the system in England and Wales.

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Judicial Review reform and the mystery of the missing evidence

17 January 2013 by Adam Wagner

The Government’s consultation on Judicial Review ends on Thursday 24 January – please forward your response to the consultation by email  and I will include it in a roundup.

It is fashionable at the moment to speak about ‘evidence-based’ policy. The concept has been imported from the sciences by advocates such as Dr Ben Goldacre. In short, policies should be based on empirical evidence, statistics and perhaps even randomised trials. Very sensible. So sensible, you would hope that Government has been doing it anyway.

Which brings me to the planned reform of Judicial Review, the process by which legislative and executive decisions are reviewed by judges to make sure they are lawful. The Government’s ideas are fairly significant, although not quite as major as defeating Hitler, as the Prime Minister intimated they were when he announced them. I have already looked at the proposals in some detail – see also this excellent post. I wanted to concentrate here on the broader picture; the ‘mood music’, as it has been described by Mark Elliott.

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More Leveson, Channel Islands Homosexuality and Gay Marriage – The Human Rights Roundup

9 December 2012 by Sam Murrant

Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

Commentary on the Leveson report is again dominating the blogosphere this week – and once again, there is some discussion on whether the UK should maintain a relationship with Strasbourg. Gay marriage is also back in the news. However, we also have some “new” news, covering such diverse topics as homosexuality in the Channel Islands, “indie lawyers” and legal aid. A quick reminder: tomorrow (Monday 10 December) is Human Rights Day. We will be hosting a guest post which you can read in the morning.

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Bars to the Bar: Diversity in the Legal Profession Before the Canadian Supreme Court – Michael Rhimes

21 June 2018 by Guest Contributor

On 15^th June 2018 the Canadian Supreme Court handed down two interesting and closely related judgments involving Trinity Western University: Law Society of British Columbia v Trinity Western University and Brayden Volkenant 2018 SCC 32 and Trinity Western University and Brayden Volkenant v Law Society of Upper Canada 2018 SCC 32

Trinity Western University (TWU) is a Christian University – indeed, in its own words, it is “a distinctly Christian university” (here, page 2). It takes “the Bible as the divinely inspired, authoritative guide for personal and community life” (here, page 1) and seeks“to develop godly Christian leaders”.

Prospective TWU students must sign a ‘Community Covenant’. That Covenant requires them to commit to “reserve sexual expressions of intimacy for marriage” and abstain from“sexual intimacy that violates the sacredness of marriage between a man and a woman” (here, page 3). This rule applies both on and off campus(the Abstinence Rule, see paras [1] and [319]).

The Law Society of British Columbia (LSBC) refused to approve TWU’s faculty of Law because of the Abstinence Rule (I will call this the Decision). The question before the Supreme Court of Canada was whether this was lawful. The issue in Law Society of Upper Canada dealt with a similar decision of the Law Society of another province(Ontario)to approve the TWU law school.  
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A privacy injunction binding on the whole world

25 April 2011 by Guest Contributor

OPQ v BJM [2011] EWHC 1059 (QB – Read judgment

The case of OPQ v BJM addresses one of the most difficult practical issues in privacy law and adopts a novel solution.  Eady J granted a “contra mundum” injunction – that is, one binding on the whole world – in an ordinary “blackmail” privacy case.   This means that, although a “final judgment” will be entered, the injunction continues to bind the press and other third parties. 

The case has attracted considerable media criticism, for example in the “Daily Mail” which, in a front page story tells its readers: “TV Star’s Shame Hushed up for Ever” (incidentally, the reference to a “TV Star” seems, at first sight, to breach terms of the instruction across the top and bottom of the judgment which is, presumably, part of the court’s order: “Publication of any report as to the subject-matter of these proceedings or the identity of the Claimant is limited to what is contained in this judgment“).

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Strasbourg and why you must give reasons on domestic appeals

6 October 2014 by David Hart KC

Hansen v. Norway, ECtHR, 2 October, read judgment

In any system of appeals, there is always a tension between giving everyone a fair hearing and concentrating on the appeals which do stand a reasonable prospect of success. The UK, like many countries, has introduced some filters on civil appeals in relatively recent times, enabling unmeritorious appeals to be dismissed at the threshold. In doing so, it gives short (sometimes very short) reasons for refusing permission.

You might have thought that this was a classic area where Strasbourg would be wary about intervening in domestic practice and striking the balance between speed and fairness. Yet the Court was persuaded that the Norwegians got the balance wrong, and found a breach of Article 6(1). We therefore need to read it carefully to see whether the same could be said about our system.

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Protocol 2 Article 1

1 June 2010 by Adam Wagner

Protocol 2 Article 1 | Right to education

Read posts on this Article

Article 2 Protocol 1 provides:

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the state shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

Although this Article is incorporated into national law by the Human Rights Act 1998, the United Kingdom has filed a reservation in respect of the Protocol 1 Article 2 which applies to domestic interpretation of the right as well as to this country’s obligations under the Convention at international level. The reservation accepts the principle of education in conformity with parent’s religious and philosophical convictions “only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.

The leading case on Protocol 1 Article 2 is Belgian Linguistic (1968) 1 EHRR 252 in which the European Court of Human Rights stated that the rights protected in that Article are:

1. a right to access to educational institutions existing at a given time;
2. a right to an effective education;
3. a right to official recognition of the studies a student has successfully completed;

However, this right does not impose on States an obligation to establish at their own expense, or to subsidise, education of any particular type or at any particular level. Nor does it entail a right for aliens to remain in the State of entry to take advantage of the local education system: (1) Henry Holub (2) Eva Holub v Secretary of State for the Home Department [2001] 1 WLR 1359. Nor does this article impede the power of local education authorities to refuse grants for certain vocational courses (R v Birmingham City Council, ex parte Jacob Youngson (2001) LGR 218).

This right has been invoked by pupils who have been excluded from schools for disruptive behaviour, however these kinds of challenges rarely succeed. Provided schools reserve exclusion for serious cases in which less intrusive measures are inadequate, restrict the removal to as short a period as possible and make sensible efforts to provide alternative educational support, they will not be found by the domestic courts or Strasbourg to be in breach of A2P1: see Ali v United Kingdom (2011) ECHR 17 and Joe Barrett’s discussion of the case here.

It is arguable that parents may claim a right under this Article to start and run a private school: see European Commission of Human Rights decision in Ingrid Jordebo Foundation of Christian Schools Ingrid Jordebo v Sweden (1987) 51 DR 125 and the State may not use its regulatory power to make it impossible to establish private schools.

Finally, it is important to note that the “right” to an education is not a “civil right” to which the fair trial guarantees of Article 6 may apply: see R v Richmond-Upon-Thames London Borough Council ex parte JC (A Child) (2001) LGR 146.

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• Introduction to the Human Rights Act 1998

Rehashing old ideas? A response to the Bill of Rights Commission’s proposals

20 September 2011 by Graeme Hall

As we recently posted, the UK Commission on a Bill of Rights has published its interim advice to Government on reform of the European Court of Human Rights. The Commission made recommendations to achieve the “effective functioning of the Court over the long term”, following which Joshua Rozenberg stated that “everybody now agrees on the need for fundamental reform. It has to happen. And it will.”

But if there is such agreement, can the Commission’s recommendations produce any meaningful reform? Or do the proposals simply rehash old ideas?

by Graeme Hall

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When the EU implements Aarhus against itself, oh, how minimally it does it.

3 July 2012 by David Hart KC

On the EU watch again, I am afraid. We have looked at getting documents out of the EU, in the context of the IFAW case about the German Chancellor’s letter, via Regulation (EC) No 1049/2001 (the EU Access to Information Regulation). And also on how to seek annulment of  EU laws and decisions from the EU courts (Inuits and all that). Both apply to all EU issues. We have mused on what might happen if the EU institutions sign up to the ECHR, so that complaints about them can go to the Strasbourg Court.

Veterinary tribunal did not show bias

18 January 2012 by Rosalind English

Joseph Lennox Holmes (Appellant) v Royal College of Veterinary Surgeons (Respondent) [2011] UKPC 48 – read judgment

The disciplinary procedures of the Royal College of Veterinary Surgeons did not give rise to any appearance of bias so as to breach a practitioner’s right to a fair trial under Article 6.

Despite the fact that the membership of the committee dealing with the prosecution of charges was drawn from the College’s governing body, in whose name any charges were brought, and that the body dealing with the determination of charges was also drawn from the College’s governing body, in practice their procedures were fair.

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Flooding claims from Vladivostok get to Strasbourg – and win

27 March 2012 by David Hart KC

Kolyadenko v. Russia

EHCtR, 28 February 2012 

This was the scene in the riverbed lying below a large reservoir near Vladivostok. There had been very heavy rain, causing the managers of the reservoir to let water through into that riverbed for fear that the reservoir might collapse. But the channel beneath was not exactly clear of obstructions, as the image shows. 6 flooded applicants obtained no redress in the Russian Courts, and had to go to Strasbourg to get damages – nearly 11 years after the flood in August 2001.

It might be thought that similar claimants here would not go uncompensated. But that is far from clear, as English law on flooding liabilities is by no means straightforward. Hence, the interest of the case, in which claims under Articles 2 (right to life), 8 (right to private and home life) and Article 1 Protocol 1 (right to possessions) were successful.

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