Sexual Harm Prevention Orders in Cases Involving Prohibited Images of Children

When individuals are convicted of downloading indecent images of children, the imposition of a Sexual Harm Prevention Order (SHPO) is almost a foregone conclusion. However, the situation becomes less clear-cut when the images are not of real children but are animated representations. Mark Pritchard explains the state of the law relating to non-photographic sexualised images of ‘children’.

Mark Pritchard

SHPOs are judicial tools employed following a conviction for relevant offences listed in Schedules 3 or 5 of the Sexual Offences Act 2023. According to Section 356 of the Sentencing Act 2020, such orders should only be issued if necessary to protect the public or specific public members from sexual harm by the offender. This extends to safeguarding children and vulnerable adults, both within and outside the United Kingdom.

The proliferation of animated pornography on the internet has surged in recent years, with some depictions involving child-like figures in sexual activities. These images, known by terms like ‘hentai’ and ‘yaoi’ or more typically described by their content, fall under the offence of possession of prohibited images of children in England and Wales. The common misconception that their animated nature equates to legality is misguided.

The maximum penalty for possessing prohibited images of children is three years’ imprisonment. Notably, this offence does not trigger automatic inclusion on the sex offenders register, unlike the possession or creation of indecent images of children. Inclusion is contingent upon the offender being at least 18 years old and receiving a sentence of at least two years’ imprisonment or an SHPO, as per Section 352 of the Sentencing Act 2020. Consequently, the decision to issue an SHPO in such cases is often vigorously challenged.

The Court of Appeal’s stance on SHPOs in this context, as delineated in R v Choung [2019] EWCA Crim 1650, is instructive. In Choung, the defendant’s collection comprised 2,335 ‘Hentai’ images—computer-generated animations of children in sexually abusive scenarios—none depicting real children, alongside extreme pornographic content.

The court has consistently underscored the ‘necessity’ criterion for SHPOs, mandating individualised assessments based on each case’s specifics. The ‘sexual harm’ referenced pertains to the damage inflicted upon actual children portrayed in pornographic materials. Mr Justice Lavender, in deliberating over animated images, clarified that such images, devoid of real children and their corresponding harm, would not justify an SHPO if they were the sole content in possession or likely future possession, thus indicating no risk of sexual harm.

The decision to issue an SHPO will invariably hinge on the particulars of each case and the defendant’s risk profile. Post-Choung, the threshold for an SHPO in cases exclusive of actual sexual harm to real children remains stringent. Unless the offender presents a substantial risk or the facts are exceptionally compelling, the necessity and proportionality of an SHPO for possessing animated prohibited images are doubtful.

 

Mark Pritchard conducts criminal proceedings at all levels in England and Wales, as well as related matters before the High Court. If you wish to instruct him, please contact his clerks by email or by telephone to check his availability.

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