Search Results for: puberty blockers consent
3 December 2013 by Adam Wagner
Updated x 2 | Journalist Christopher Booker reported in Saturday’s Telegraph that an Italian woman was forced by Essex County Council social services to have a cesarean section, and then had her baby taken away from her – all sanctioned by the Court of Protection.
The story has become international news. I was going to write in detail on this, but family law barrister Lucy Reed has done a much better job than I would have been able to do. Her blog is here. Essex County Council have also released a statement of facts, which is here. I also recommend Elizabeth Prochaska and Suesspicious Minds.
I will keep this very simple. It was pretty obvious, based on Christopher Booker and John Hemming’s form (see my blog from 2011), that we were only getting a partial view of the story.
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27 April 2016 by Rosalind English
In the matter of proceedings brought by Kings College NHS Foundation Trust concerning C (who died on 28 November 2015) v The Applicant and Associated Newspapers Ltd and others [2016] EWCOP21 – read judgment
The Court of Protection has just ruled that where a court has restricted the publication of information during proceedings that were in existence during a person’s lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person’s death.
I posted last year on the case of a woman who had suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act. An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment (King’s College Hospital NHS Foundation Trust v C and another [2015] EWCOP 80).
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6 November 2023 by Hal McNulty
In the news
As Israel’s ground invasion of Gaza begins, commentators and key global organisations are assessing whether international law is being broken by either side in the conflict. The UN said as early as 10th October that both Hamas and the Israeli military may have committed war crimes and that it is gathering evidence for potential prosecutions. Hamas’ terrorist attack of 7th October, which killed hundreds of noncombatants and abducted others for use as human shields and hostages, has already been labelled a crime under international humanitarian law. Meanwhile, Israel’s siege of Gaza, which includes shutting down food, water and electricity supplies and preventing humanitarian relief, may constitute the crime of collective punishment, according to the UN and the International Committee of the Red Cross. Karim Khan, the British barrister who currently acts as the ICC prosecutor, has said the ICC will pursue investigations into the 7th October attack as well as Israel’s activities in Gaza and the West Bank.
Donald Trump’s sons have taken the stand in their father’s fraud trial in New York. This case concerns the Trump family’s property business, and the prosecution hold that members of the family including Eric and Donald Trump Jr falsely inflated its finances and falsified records. Both sons of the property magnate denied wrongdoing and instead suggested an accountancy firm were to blame, with Trump Jr remarking in testimony that ‘I leave it to my accountants.’ Eric Trump was confronted with email evidence that, despite his assertions, he was in fact closely involved with the construction of the company’s financial statements. The prosecution are seeking a fine of $250m and a ban on Donald Trump and his adult sons doing business in the state.
The Isle of Man Parliament has progressed an assisted-dying legalisation bill. The private members bill was brought by Alex Allinson MHK (Member of the House of Keys), who labelled the proposal a move towards “compassion, choice, and autonomy,” while other MHKs spoke against the bill on the grounds that safeguards against coercion would be difficult to put in place. The bill has it that those eligible would have to conform to several criteria: terminally-ill, over the age of 18, resident on the Isle of Man for at least 12 months, and to have the legal capacity of make the decision and a “clear and settled intention to end their life.” Rob Callister MHK raised the concern that the island become a “death tourism” hotspot, should the bill be passed with its current residency minimum. The campaign group Dignity in Dying has called for the central government in Westminster to follow suit, the Royal College of Surgeons having recently withdrawn its opposition to the proposal.
In other news
The chair of the Bar Council has proposed a solution to the over-use of Strategic Litigation Against Public Participation (SLAPP). SLAPPs typically involve a powerful individual or organisation targeting financially-weaker journalists or publishers with the threat of bringing onerous legal actions. They have been the subject of much public criticism lately, and are described as undermining the democratic principles of free speech and the rule of law. Nick Vineall KC has suggested that those who cynically pursue claims in order to shut down legitimate criticism and public debate should be liable in damages for acting contrary to the public interest. “The public interest is damaged by not having access to information which should never have been restrained, while the reputation of the claimant is unjustifiably protected for a period because something which ought to have been said about them is not said for a period of time, and sometimes of course forever.” Speaking at the IBA conference in Paris, Vineall made a comparison to the practice of applicants for injunctions accepting an undertaking to pay damages in case their claim turns out to be unjustified and the injunction causes harm to the defendant. Listen to our interview with Greg Callus on the subject of SLAPPs on Law Pod UK here.
A leading thinktank has warned that Britain’s public services are stuck in a “doom loop” of recurrent crises as a result of government’s short-term planning. The Institute for Government said that, due to prioritising short-term goals over long-term solutions, underfunding public services, and reversing policy decisions within short periods of time, the British state is underperforming across a range of public services and organisations. “The result is crumbling schools, NHS computers that don’t turn on, and not enough prison cells to house prisoners.” The report cites the crown court backlog, standing in June at a record high of 64,709 cases, and concludes the prison system is “at bursting point” due to over-crowding and under-staffing.
The Scottish government has released a legislative proposal that would give ministers the power to assess and ‘remediate’ (repair or remove) buildings with unsafe cladding without owners’ consent and to evacuate the occupants of unsafe buildings. The Housing (Cladding Remediation) Bill creates a new offence for obstructing or failing to assist with assessment, and introduces the concept of a Scottish ‘responsible developers’ scheme, which would encourage developers to fund remediation work.
In the courts
In Scottish Association of Landlords v Lord Advocate [2023] CSOH 76, the Scottish Court of Session determined that the Cost of Living (Tenant Protection) (Scotland) Act 2022 did not disproportionately interfere with article 1 of the ECHR protocol 1, which states that ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions.’ The court held that the Scottish government’s assessment of proportionality, in bringing a bill that caps rent and places a moratorium on evictions in private residential tenancies, did not proceed manifestly without reasonable foundation.
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25 July 2012 by Rachel Marcus
Dinah Rose QC
Monday night’s fascinating seminar on Article 9, “Outlawing God”, saw Dinah Rose QC, John Bowers QC, Dr Evan Harris (Liberal Democrat former MP) and Rabbi Michael Laitner (solicitor and Orthodox rabbi) square off over the relationship of the courts to religious belief and believers, refereed (and sometimes stoked) by Joshua Rozenberg in the chair. The seminar, which raised almost £2,000 for legal advice clinics at the Hebrew University, can be listened to here.
There was a clear division in the room: between the lawyers, who felt that the courts in both the UK and Strasbourg afforded less robust protection to Article 9 rights than to the other rights in the Convention; and Dr Harris, who could not accept that a religious belief was any more worthy of protection than any political belief.
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5 December 2012 by Rosalind English
X v Facebook Ireland Ltd [2012] NIQB 96 (30 November 2012) – read judgment
This fascinating case comes to light in the midst of general astonishment at the minimal attention paid in the Leveson Report to the “wild west” of the internet and the question of social media regulation.
This short judgement demonstrates that a careful step by step judicial approach – with the cooperation of the defendant of course – may be the route to a range of common law tools that protect individuals from the internet’s incursions in a way which no rigidly formulated statute is capable of doing. As the judge observed mildly,
The law develops incrementally and, as it does so, parallels may foreseeably materialise in factually different contexts.
Background to the case
The plaintiff (XY) sought an injunction requiring Facebook to remove from its site the page entitled “Keeping Our Kids Safe from Predators”, alternatively requiring Facebook to monitor the contents of the aforementioned page in order to prevent recurrence of publication of any further material relating to the Plaintiff and to remove such content from publication forthwith.
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3 March 2011 by Isabel McArdle
P and Q by the Official Solicitor, their Litigation Friend v Surrey County Council and Others (Equality and Human Rights Commission, Intervener) [2011] EWCA Civ 190- read judgment
What does it mean to be “deprived of liberty”? This is not an easy question, and there are a wide variety of relevant factors. For instance, the amount of space a person is free to roam in, the degree of supervision and the amount of time away from their main residence are matters which are likely to vary greatly from case to case. There are many borderline cases.
In an important recent case, the Court of Appeal has found that there was no deprivation of liberty, within the meaning of Article 5 of the European Convention on Human Rights, when two people with moderate to severe learning difficulties are cared for in a foster home and a specialist home for adolescents respectively.
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29 September 2015 by Laura Profumo
Laura Profumo brings you the latest human rights happenings.
In the News:
Nicola Sturgeon, the Scottish First Minister, announced last week that it was “inconceivable” that the SNP would support the Conservative plans to scrap the Human Rights Act. Talking to an audience in Glasgow on Wednesday, Sturgeon pledged her unequivocal commitment to block the HRA-repeal. Sturgeon warned that human rights remained a “devolved issue”, meaning that Scottish opposition might well hamper Gove’s forthcoming efforts. Many find sympathy with Sturgeon’s stance. Sturgeon values the HRA as a “careful model” which incorporates human rights protection into UK law, without upsetting our constitutional bedrock, writes Alex Cisneros in The Justice Gap.
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13 December 2021 by Sapan Maini-Thompson
In Government of the United States v Julian Assange [2021] EWHC 3313 (Admin), the High Court allowed the appeal of the United States of America against the ruling of Westminster Magistrates’ Court, thereby permitting the extradition of the WikiLeaks founder to the US where he faces criminal charges relating to the unlawful obtaining and publication of classified defence and national security materials.
The High Court held that diplomatic assurances given by the US government regarding Assange’s prospective detention conditions were sufficient to quash the original basis upon which his extradition was initially discharged, namely that his mental condition was such that it would be “oppressive” to extradite him, per s.91 Extradition Act 2003.
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12 July 2011 by Adam Wagner
2011 may be remembered as the year of Article 8. The public may not realise it, but the two major news stories of this year have had at their core the 8th article of the European Convention on Human Rights, the right to privacy and family life. And without this controversial law, the phone-hacking scandal may never have been exposed.
First came the super-injunctions scandal, in which the public, egged on by the popular press, became enraged at sportsmen using expensive privacy injunctions to keep details of their alleged bad behaviour out of the news. That scandal has now been replaced by a much bigger one, relating to illegal phone hacking. The affair has already led to the demise of the News of the World.
As the human rights organisation Liberty have pointed out, the newspaper was never a fan of New Labour’s Human Rights Act. Amongst other things, it fought an expensive and partially successful privacy battle against Max Mosley over claims that he slept with prostitutes in a “sick Nazi orgy“. It has always been suspected that the tabloid press’s almost universal antipathy towards the 1998 Act, which in theory at least should be popular as it protects citizens against nasty state intrusion, was inspired by the fear that the privacy rights it bolstered, despite the competing right to freedom of expression, would prevent them doing their jobs. And now, with some irony, it is a tabloid newspaper and not a public authority which may represent the 1998 Act’s most high-profile scalp.
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18 June 2020 by Rosalind English
PHG, linked with Cambridge University, provides independent advice and evaluations of biomedical and digital innovations in healthcare. PHG has recently published a series of reports exploring the interpretability of machine learning in this context. The one I will focus on in this post is the report considering the requirements of the GDPR for machine learning in healthcare and medical research by way of transparency, interpretability, or explanation. Links to the other reports are given at the end of this post.
Just a brief summary of machine learning in healthcare (for the detail, go to PHG’s report Machine Learning Landscape).
Machine learning typically denotes “methods that only have task-specific intelligence and lack the broad powers of cognition feared when ‘AI’ is mentioned”. Artificial intelligence (AI) can be defined as “the science and engineering of making computers behave in ways that, until recently, we thought required human intelligence.” We are only beginning to realise the scope of intelligence that is silicone-based, rather than meat-based, in the reductionist words of neurscientist and author Sam Harris. It is important too to grasp the difference between types of programming. As this report puts it,
Machine learning as a programming paradigm differs from classical programming in that machine learning systems are trained rather than explicitly programmed. Classical programming combines rules and data to provide answers. Machine learning combines data and answers to provide the rules
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10 October 2018 by Rosalind English
Lloyd v Google LLC [2018] EWHC 2599 (QB) 8 October 2018 – read judgment
This is a novel form of action, but everything was new once (Warby J para 100)
Already today we are becoming tiny chips inside a giant data-processing system that nobody really understands. (Yuval Noah Harari, 21 Lessons for the 21st Century, p. 36)
Do people want privacy? Because they seem to put everything on the internet. (Elon Musk, interview on Joe Rogan podcast #1169 at 1.49)
Most of us resignedly consent to the use of cookies in order to use internet sites, vaguely aware that these collect information about our browsing habits in order to target us with advertisements. It’s annoying, but does it do us any harm? That is the question that came up before Warby J in a preliminary application for a representative claim last week.
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3 September 2017 by Rosalind English
Clinical Genetics is a field of medicine concerned with the probability of an indvidual’s condition having an hereditary basis. The journal Medical Law International has just published an article about the scope of potential duties of care owed by specialists in this field to people with heritable diseases. The authors draw out the features of genomic medicine that open the door to new liabilities; a potential duty owed by clinicians to third party family members, and another legal relationship that may be drawn between researchers and patients.
Background
There is no legislation on the duties involved in genome sequencing in the United Kingdom, and, in the absence of this, any new legal duties on the part of professionals in clinical genomics need to be established within the common law of negligence. Civil lawyers are familiar with the standard framework for establishing whether a duty of care is owed, based on these three consecutive questions:
- Was the damage was reasonably foreseeable
- Was there was sufficient “proximity” between the claimant and the defendant and
- Would it be fair, just and reasonable to impose a duty: see Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605, 617-618
These principles are neat enough as they are laid out but only take us as far as the facts of any particular case, particularly the Caparo test outlined in para (3).
This relatively new field of medical endeavour is unusual in that it is concerned with the management of a family rather than one individual. More generally, in the field of genomic medicine, there is a “close interaction between care and research”, resulting in “the real possibility” that genomics researchers will be found to owe a legal duty to disclose findings to participants.
So we have two new possible avenues of liability here; that of clinicians to third parties, and that of researchers to patients.
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10 April 2012 by David Hart KC
R (o.t.a Guardian Newspapers) v. City of Westminster Magistrates Court, USA as Interested Party, 3 April 2012, Court of Appeal: read judgment
No, not a case about secret trials, but about the way in which newspapers can get hold of court papers in open oral hearings. And, as we shall see, it led to a ringing endorsement of the principle of open justice from the Court of Appeal, leading to production of the documents to the Guardian.
Bribery allegations against a London solicitor and a former executive of a Halliburton company, and extradition sought by the USA and keenly challenged by the defendants. Some lack of clarity as to why the Serious Fraud Office was not prosecuting the defendants. All in all, a tasty morsel for the Guardian to get its teeth into. It was allowed into the hearing, but then not allowed critical documents provided to the courts, including the written arguments submitted by the USA and the defendants, affidavits supporting the extradition, and various other letters and documents put before the court.
Why not?
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14 February 2018 by Rosalind English
ABC v Thomson Medical Pte Ltd and others, Singapore Civil Court of Appeal [2017] SGCA 20 – read judgment
It is a trite reflection that law should change with the times but every so often we see the hair-pin bends in law’s pursuit of modern technology. This case from Singapore about reproductive rights and negligence in an IVF clinic is just such an example. As the judge said at the outset, the need for the law to adjust itself to the changing circumstances of life is clearest in the area of medical science,
where scientific advancement has made it possible for us to do things today which would previously have been unimaginable a few decades ago. This has brought untold prosperity to many, and hope to those who previously had none; but it has also given us greater capacity for harm.
Background facts
The Appellant, a Chinese Singaporean, and her husband, a German of Caucasian descent, sought to conceive a child through in-vitro fertilisation . The Appellant underwent IVF treatment and delivered a daughter, referred to in the judgment as “Baby P”. After the birth of Baby P, it was discovered that a serious mistake had been made: the Appellant’s ovum had been fertilised using sperm from an unknown Indian third party instead of sperm from the Appellant’s husband. It turned out that the clinic had processed two semen specimens inside one laminar hood at the same time and failed to discard the disposable pipettes that had been used after each step of the IVF process. This had resulted in a baby being born on 1 October 2010, whose DNA did not match her father’s.
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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:
- Is the making of an order necessary to protect from serious sexual harm through the commission of scheduled offences ?
- If some order is necessary, are the terms proposed nevertheless oppressive?
- 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:
- The sex offender notification rules;
- Disqualification from working with children; and
- 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.
There is no need for the SOPO to invest the police with powers of forcible entry into private premises beyond their statutory powers.
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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