Dewey v R
[2024] EWCA Crim 409
R v Owen Huw David
21 November 2023
[2023] EWCA Crim 1561
Court of Appeal
A man was ordered to take lie detector tests whenever the police or his probation officer wanted. The court said this was unfair and too broad, throwing out that part of his court order because it wasn't specific enough and didn't explain why it was needed.
Key Facts
- •Owen Huw David was sentenced to three years and two months' imprisonment for breaching a Sexual Harm Prevention Order (SHPO) and making indecent photographs of a child.
- •He appealed against the SHPO's prohibition 13, which required him to comply with any instruction to participate in polygraph/integrity screening.
- •The appeal focused on whether prohibition 13 was necessary and proportionate under the Sentencing Act 2020 and Human Rights Act.
- •The SHPO was imposed following convictions for possessing indecent images of children and breaching a previous SHPO.
- •The prosecution argued the polygraph testing was a safeguarding tool, not an evidence tool, and necessary given the high risk posed by the appellant.
Legal Principles
SHPO prohibitions must be necessary, proportionate, clear, realistic, and not oppressive.
R v Parsons (Hayden Graeme); Morgan (Stuart James) [2017] EWCA Crim 2163
The court must consider the principles outlined in R v Smith [2011] EWCA Crim 1772 when imposing SHPOs.
R v Smith [2011] EWCA Crim 1772
A SHPO imposing a positive requirement must specify a person responsible for supervising compliance and receive evidence of its suitability and enforceability (section 347A, Sentencing Act 2020).
Sentencing Act 2020, section 347A
SHPO prohibitions must be justified and reasons provided by the judge for necessity and proportionality.
Sentencing Act 2020, section 343
Interference with Article 6 (right to a fair trial) and Article 8 (right to private and family life) rights must be in accordance with the law and justified.
Human Rights Act
Outcomes
The appeal was allowed in respect of prohibition 13.
Prohibition 13 was disproportionate and did not comply with section 347A of the Sentencing Act 2020 due to its vague wording regarding supervision and the lack of defined parameters for polygraph testing.
Prohibition 13 was deleted from the SHPO.
The court found that the prohibition was too wide, vague, and potentially oppressive, failing to meet the requirements of necessity and proportionality.