Young Choung [2019] EWCA Crim 1650

The appellant was granted permission to appeal against a sexual harm prevention order. The order was imposed when he was sentenced for possessing an extreme pornographic image and possessing a prohibited image of a child. The latter charge concerned 2,335 images of a kind known as Hentai, which are computer generated animated images of children being subjected to various acts of sexual abuse. The Hentai images did not depict real children.

The appellant had no other convictions and had been sexually abused as a child. He began viewing pornography at the age of 9 and developed an interest in Hentai images. The charges covered the period when he was aged between 15 and 21. After his arrest, he contacted the Lucy Faithfull Foundation and worked with them to manage his behaviour. In a report provided over 30 months since his arrest, it was said, “it is likely that this type of behaviour will re-occur unless there is a change in his sexual thinking, emotional management and coping skills”.

The pre-sentence report did not engage with the issue raised by the fact that none of the Hentai images involved any real children.

The SHPO was made for 5 years and contained several prohibitions relating to internet access. The appeal was on the grounds that the order was unnecessary in its entirety and/or that the first prohibition went beyond what was necessary. That prohibition prevented access to the internet by any device without Risk Management software installed by the police.

Held: the test is one of necessity, and each case must be considered on its own facts. Had the images been of real children, there is no doubt an order would be necessary. If the Hentai images were the only images he had possessed, and was likely to possess in the future, there would be no risk of sexual harm to anyone, and no need for an order. The appellant also had in his possession, however, a photo of a woman engaged in bestiality. It was also noted that he was becoming more curious and exploring pornography other than Hentai images, and that a change in his thinking was needed.

The facts of this case were such that the judge was entitled to be satisfied that an order was necessary.

In respect of the first prohibition, it did go beyond what was necessary, bearing in mind the case of Parsons [2017] EWCA Crim 2163. An amended prohibition, taken from a standard form used by the CPS in London, was inserted in its place.