Parsons and Morgan [2017] EWCA Crim 2163, [2018] 1 Cr App R (S) 43

**R v Parsons; R v Morgan [2017] EWCA Crim 2163; [2018] 1 Cr App R (S) 43** concerned the Court of Appeal (Criminal Division) sitting with Lord Justice Gross, Mr Justice Teare and Mr Justice Kerr, addressing two separate appeals raising common questions about the proper scope of prohibitions imposed under Sexual Harm Prevention Orders, particularly in relation to internet access and use, and considering whether guidance previously given in respect of Sexual Offences Prevention Orders required adaptation in light of technological developments and changes to everyday living.

Mr Morgan was convicted in the Crown Court at Worcester of five offences: three counts of making indecent photographs of a child contrary to section 1(1)(a) of the Protection of Children Act 1978, one count of possession of an extreme pornographic image contrary to section 63(1) of the Criminal Justice and Immigration Act 2008, and one count of possession of a prohibited image of a child contrary to sections 62(1) and 66(2) of the Coroners and Justice Act 2009. He was sentenced by His Honour Judge Pearce-Higgins QC to a 36 month community order with a requirement to participate in the Community Sex Offender programme, concurrently on all counts, and made subject to a five year SHPO which prohibited him from accessing the internet or possessing any device capable of accessing the internet save in a public place, public library or under the supervision of a police or probation officer. Mr Parsons pleaded guilty before the magistrates to one count of making indecent photographs of a child and possessing a class B drug, and was committed for sentence to the Crown Court at Lewes before His Honour Judge Niblett, who imposed a 12 month suspended sentence on the first count, one month consecutive on the second count also suspended, and a ten year SHPO containing seven detailed prohibitions governing internet use, contact with children under 18, installation of monitoring software approved by police, cloud storage, deletion of internet history, possession of devices, and encryption or wiping software. Both appellants challenged the terms of their respective SHPOs.

The Court heard evidence from an expert, Mr Caithness, about current technology and its use in everyday life, including risk management monitoring software, cloud storage and encryption software. The Crown appeared through Mr Heptonstall, Mr Luttman represented Mr Parsons, and Mr Thompson represented Mr Morgan. The Court considered the legislative framework under sections 103A and following of the Sexual Offences Act 2003, noting that a SHPO can be imposed where necessary to protect the public or particular members of the public from sexual harm simpliciter, whereas a SOPO required a risk of serious sexual harm. The Court also noted that under the SHPO regime a child is defined as a person under 18, not under 16 as had previously been the case. The Court reaffirmed the three-stage test for SHPOs set out in R v NC [2016] EWCA Crim 1448, namely whether the making of an order is necessary to protect the public from sexual harm through the commission of scheduled offences; if so, whether the terms imposed are nevertheless oppressive; and overall, whether the terms are proportionate.

The Court underlined that no SHPO should be made unless necessary to protect the public from sexual harm. If an order is necessary, the prohibitions must be effective; if not, the statutory purpose will not be achieved. Equally, any prohibitions must be clear and realistic, readily capable of simple compliance and enforcement, bearing in mind that breach constitutes a criminal offence punishable by imprisonment. The terms must not be oppressive and must be proportionate overall. Every SHPO must be tailored to the facts; there is no one size that fits all.

The Court identified six questions of wider importance raised by the appeals. First, as regards blanket bans on internet access and use, the Court respectfully agreed with the disapproval expressed in R v Smith [2011] EWCA Crim 1772; [2012] 1 WLR 1316, emphasising that the importance of the internet for everyday living has increased considerably since that decision. The Court accepted Mr Thompson’s submission that the need for an individual to be able to access the internet and to possess devices capable of doing so has become the established norm. The internet is now an integral part of social life, commercial transactions, dealings with government departments and local authorities, and social media. While unwilling to say that a blanket ban can never be justified, the Court stated it could not envisage such a prohibition being appropriate in anything other than the most exceptional cases. In all other cases a blanket ban would be unrealistic, oppressive and disproportionate, cutting the offender off from too much of everyday legitimate living.

Secondly, on the question of age, the Court saw 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, the facts of an individual case might point towards confining prohibitions to children under 16 for the reasons given in Smith. Thirdly, on risk management monitoring software, the Court noted the administrative burdens involved and the realities of police resource constraints. The Court expressed concern about a prohibition which assumed that a police force would necessarily wish to insist on the installation of such software or which made the use of a device contingent upon police approval of software already installed, as the latter could unintentionally become a ban on usage. Instead, the Court preferred an approach which triggered on notification by the offender to the police of acquisition of a device capable of accessing the internet. The device should have the capacity to retain and display internet history, and the offender should be prohibited from deleting such history. The device should be made available immediately on request for inspection by a police officer or employee, and the offender should be required to allow any such person to install risk management software if they so choose. The offender should be prohibited from interfering with or bypassing the normal running of any such software. The Court described this as a workable and proportionate solution.

Fourthly, on cloud storage, the Court heard evidence that such storage is practically ubiquitous, being built into or pre-installed on prevailing desktop and smartphone operating systems including Windows 10, Apple’s MacOS and iOS and Google’s Android. For users following default installation or set-up options, logging into or signing up to one of these services is implicit in the process, and unless the user specifically configures the device not to do so, use of pre-installed cloud services will take place transparently. The Court held that a prohibition on cloud storage must not be too blunt or become a trap for the unwary user. The vice to be targeted is not the default or automatic use of cloud storage, but the deliberate installation of a remote storage facility specifically installed by an offender without notice to police and which would not be apparent from the device being used and not intrinsic to its operation. This more targeted approach, together with a notification requirement, was reflected in the orders substituted by the Court.

Fifthly, on encryption software, the Court heard evidence that anyone interacting with a modern computer system will likely be making use of encryption in one form or another for a significant period of usage. Examples include access to websites beginning with “https”, mandatory encrypted storage on Apple iPhones which cannot be disabled, and communication applications such as Skype and WhatsApp which widely use encryption. Beyond personal computing devices, encryption is used in mobile phone calls and subscription television. Prohibiting the use of all encryption would have a great impact on the ability of a person to operate within a digital landscape and would make use of the internet limited and insecure. As with cloud storage, the Court held that a prohibition must neither be a blunt instrument nor a trap for the unwary. It must be targeted at the installation of encryption or wiping software on any device other than that which is intrinsic to its operation.

Sixthly, the Court held that the observations in R v McLellan and Bingley [2017] EWCA Crim 1464 as to the demarcation between appeals to the Court of Appeal and applications to vary or discharge SOPOs apply equally, mutatis mutandis, to SHPOs. The Crown Court’s jurisdiction to vary or discharge a SHPO is furnished by section 103E of the Act. Pulling the threads together, the Court stated that the guidance given by Smith remains, in general, essentially sound and should continue to be followed. However, in certain specific areas, developments in technology and changes in everyday living call for an adapted and targeted approach, especially in relation to risk management monitoring software, cloud storage and encryption software. It is also necessary to take account of the SHPO legislation defining “child” as a person under 18 rather than under 16.

In Mr Morgan’s case, the appellant was aged 49 and of previous good character. On 10 May 2017 police executed a warrant and seized computer equipment. He admitted he had been deleting material from emule, a peer-to-peer sharing network. He explained he had a lifetime’s collection of pornography obtained from the network and stored on hard drives, viewing pornography daily. Over time he had accidentally downloaded indecent images of children, some of which he had viewed and some deleted. Analysis of items seized revealed 172 category A moving images of a child, seven category B moving images, two category C moving images, 144 extreme images and 602 extreme moving images portraying intercourse or oral sex with an animal, and one prohibited image, namely an indecent cartoon image of a child. There was evidence of attempted disposal or concealment and systematic storage and organisation of the collection. The pre-sentence report stated he initially encountered indecent images involving children by accident but thereafter searched for, downloaded and stored such material. He gained sexual gratification from such images and also from images involving animals. He was assessed as highly sexually preoccupied, working only two days a week and spending the rest of his time watching films and pornography. His lifestyle was isolated and revolved around his computer. He was assessed as posing a medium risk of re-offending and presenting a high risk of harm to children because his offending behaviour supported an exploitative industry.

Sentencing the appellant, the judge gave full credit for his guilty plea and commented that for many years his life had been dominated by online activity, living in an unreal world on the internet. The judge considered that the best way to address his problems and protect society was to impose a 36 month community order with a requirement to attend the Community Sex Offenders programme. In relation to the SHPO, the judge took the view that the appellant was unlikely to make much of a recovery until he started living a real life rather than an online life, and that he should be prevented from using or having access to a computer except in a public place such as a public library or under the supervision of police or a probation officer. The judge’s approach was unsupported by submissions of either counsel. The prosecution, while seeking a SHPO, highlighted that the authorities were against a blanket ban. Defence counsel contended that such a blanket prohibition was neither permitted nor proportionate, relying inter alia on Smith. The judge accepted that authority appeared to be against a blanket prohibition but observed that every case was different and draconian measures were necessary. The judge drew an analogy with an alcoholic and emphasised the appellant’s lifestyle.

The Court held that despite the exception for use in a public place, public library or under supervision of police or a probation officer, the SHPO passed did entail an effective blanket prohibition. By way of simple example, the exception confined the appellant to sending a simple legitimate email either in a public place or under supervision. The Court was satisfied that the SHPO could not stand. The present case was not in any sense a truly exceptional case. The blanket ban was well-intentioned but unrealistic, oppressive and disproportionate. That would have been so at the time of Smith; it was all the more so now. The Court quashed the SHPO and substituted a SHPO for the same period in detailed terms. The substituted order prohibited the appellant from using any computer or device capable of accessing the internet unless he notified the police VISOR team within three days of acquisition, the device had the capacity to retain and display internet history which he did not delete, and he made the device available immediately on request for inspection and allowed installation of risk management monitoring software if chosen. This prohibition did not apply to a computer at his place of work, Job Centre Plus, public library, educational establishment or other such place, provided that in relation to his place of work he notified the police VISOR team within three days of commencing use. The order further prohibited interfering with or bypassing computer monitoring software; using or activating any function preventing retention or display of internet history; using any cloud or similar remote storage media other than that intrinsic to the device unless he notified police within three days of creating an account and provided access on request; possessing any device capable of storing digital images unless he provided access on request; and installing any encryption or wiping software other than that intrinsic to the device.

The Court also noted two respects in which the sentence may have been unlawful. As not all the offending commenced after 1 October 2012, the imposition of the victim surcharge order of eighty-five pounds was unlawful, and the Court quashed it. With regard to the community order, the difficulty related to the programme requirement if and insofar as the offending under counts one to three pre-dated the coming into force of the relevant provisions of the Criminal Justice Act 2003 on 4 April 2005. The Court quashed the sentence on counts one to three and imposed no separate penalty. The community order in respect of counts four and five remained in force and unaffected.

In Mr Parsons’s case, the appellant was aged 31 and on 12 April 2017 pleaded guilty before magistrates to one count of making indecent photographs of a child and one count of possessing a class B drug. He was committed to the Crown Court for sentence and on 10 May 2017 was sentenced to 12 months’ imprisonment suspended for 24 months on the first count and one month consecutive, also suspended for 24 months, on the second count, with supervision and programme requirements. He was made subject to a ten year SHPO with prohibitions on living in or entering any household where a child under 18 was present save with express approval of social services; having any unsupervised contact or communication with any child under 18 other than inadvertent contact or with parental consent and social services approval; using any device capable of accessing the internet unless it retained and displayed history, was made available on request for inspection, and was installed with risk management monitoring software approved by police, save for computers at his place of work or local library which must be notified and approved prior to use; utilising any cloud or similar remote storage media unless he declared use and provided access on request; deleting internet history; possessing any device capable of storing digital images unless made available on request; and purchasing, downloading, obtaining, owning or using any encryption or wiping software, possessing any encrypted media or storage device, and making passwords available. Before the Court of Appeal, objection was taken to certain of these prohibitions.

On 5 December 2016 police attended the appellant’s home address and seized a laptop and mobile phone. They also found eight grams of herbal cannabis. On the mobile phone were found 27 category A images, 48 category B images and 2,161 category C images. There was a mix of still photographs and moving images. Examples of the images in category A involved female children aged between three and ten years old, category B involved female children aged between three and ten, and category C involved female children aged between three and

Smith and Others [2011] EWCA Crim 1772, [2012] 1 Cr App R (S) 82, [2012] 1 WLR 1316
NC [2016] EWCA Crim 1448; [2017] 1 Cr. App. R. (S.) 13
McLellan and Bingley [2017] EWCA Crim 1464

Dewey [2024] EWCA Crim 409
H [2023] EWCA Crim 1550
Tite [2022] EWCA Crim 544
Lui [2021] EWCA Crim 1125
RJ [2021] 2 Cr App R (S) 29
Ali (Shahan) [2018] EWCA Crim 1941, [2018] 2 Cr.App.R.(S.) 52, CA.
Wilson [2018] EWCA Crim 1962
Connor [2019] EWCA Crim 234
Thomas [2018] EWCA Crim 2634
New JUSTICE Report: Prosecuting Sexual Offences
Young Choung [2019] EWCA Crim 1650
Criminal Law Reform Now Network – Reforming the Computer Misuse Act 1990 Report
JJ [2020] EWCA Crim 115
AB [2019] EWCA Crim 2480; [2020] 1 Cr. App. R. (S.) 67
Robert Inches [2020] EWCA Crim 373
Andrew Wilson [2020] EWCA Crim 426
Law Commission – Search warrants reform to help law enforcement investigate crime
Kish [2022] EWCA Crim 1161; [2023] 1 Cr. App. R. (S.) 23
Davidoff [2022] EWCA Crim 1253
Noel v Chief Constable of Dorset Police [2022] EWHC 3618 (Admin)
Deane [2023] EWCA Crim 929
David [2023] EWCA Crim 1561
Mannion [2023] EWCA Crim 1646
Commissioner of Police of the Metropolis v Ahmed Aweys [2025] EWHC 78 (Admin)
Pearl [2025] EWCA Crim 994
XBV [2025] EWCA Crim 1320; [2026] 1 Cr. App. R. (S.) 18
Walker [2025] EWCA Crim 1531
Garnett [2025] EWCA Crim 1830