March 21 2024
Sexual Harm Prevention Orders (SHPOs) play an important role in keeping vulnerable people and, in particular, children, safe. They do this by imposing conditions on the behaviour and online activity of persons considered to comprise a potential risk to the vulnerable.
It is critical that the orders are framed in a clear and unambiguous form, making clear the specific actions or activities that are prohibited. If this is not the case, there is a risk that a defendant may unwittingly breach their SHPO by performing actions that they truly believed to be permitted. Furthermore, charges sometimes appear to be based upon what the prosecuting authorities consider should have been prohibited, rather than what actually was prohibited in the SHPO. This is one area in which “the letter of the law” really is of crucial importance.
Often, we have been instructed to provide impartial assessments of the technical aspects in alleged breaches of SHPOs and to consider whether such breaches have actually occurred. Some examples are set out below.
Case example 1
Prohibition: Using or activating any function of any software which prevents a computer or device from retaining and/or displaying the history of internet use, for example using ‘incognito’ mode or private browsing.
Alleged Breach: Use of a chat website not retaining records of internet usage.
Analysis: This was a tricky one, as there is no clear-cut answer. The web browser was retaining records of internet use (showing usage of the chat website), but the contents of those chats was not retained by the website. The colloquial understanding of ‘records of internet use’ would not generally include the contents of the webpages, but the absolute technical definition would indeed include the contents (and in this case, the chats). Other aspects of the case included whether a website comprised software (and therefore subject of the prohibition). Again, the common usage of the term would not include a website, but the prosecution’s assertion that a website is simply software running on someone else’s computer is also true using the absolute technical definition of the term. Our report laid out to the Court all the potential interpretations and ambiguities in the relevant prohibitions, demonstrating as to whether the SHPO had been breached.
Case example 2
Prohibition: Using or activating any function of any software which prevents a computer or device from retaining and/or displaying the history of internet use, for example using ‘incognito’ mode or private browsing.
Alleged Breach: Use of “DuckDuckGo” search engine.
Analysis: DuckDuckGo is a search engine that markets itself as allowing the user to ‘search privately’, as an alternative to Google and other search engines that track user activity for the purpose of targeted advertising. Whilst DuckDuckGo does not internally retain any history, this is not the same as private browsing as the user’s device still records those searches within the Internet histories. We evidenced this with the fact that DuckDuckGo searches had been recovered from the defendant’s mobile phone; the very evidence forming the basis of the prosecution case was, in fact, exculpatory. In this case, it appeared the prosecution had confused the operation of a search engine with that of a web browser.
Case example 3
Prohibition: Using any computer or device capable of accessing the internet unless it has the capacity to retain and display the history of internet use, and he does not delete such history.
Alleged Breach: Deletion of WhatsApp chat
Analysis: This is similar to the earlier example of the chat website. The contents of a WhatsApp conversation would not fall under the common usage of the terms, but from a technical perspective, WhatsApp is an internet-based chat application, so chats could be interpreted as records of internet usage. Again, our report simply laid out the different potential interpretations of the terms for the Court to assess.
Case example 4
Prohibition: Using any computer or device capable of accessing the internet unless it has the capacity to retain and display the history of internet use, and he does not delete such history.
Alleged Breach: Use of CCleaner to delete internet records.
Analysis: Examination of the computer showed clear usage of CCleaner. The defendant stated that he only used it to delete certain system files to speed up his computer (an advertised function of CCleaner), rather than deleting Internet records. Careful analysis and testing of the application demonstrated that CCleaner had been executed with the default settings and that these included internet history records, along with the system files described by the defendant. This showed the breach had occurred, using software primarily designed for this purpose, although usage of the default settings could provide mitigation in terms of user intent.
Case example 5
Prohibition: Using or activating any function of any software which prevents a computer or device from retaining and/or displaying the history of internet use, for example using ‘incognito’ mode or private browsing.
Alleged Breach: Use of Google Chrome Incognito mode.
Analysis: Google Chrome’s Incognito mode is designed to not record internet usage on the user’s device. Unlike the previous case examples, there is no ambiguity in terms; usage of this function would be a clear breach of the SHPO. The prosecution case relied upon records recovered from the computer alleged to show that Incognito mode had been used (but not what it had been used to access). This in itself was unusual as the mode is specifically designed to not record usage, so such clear evidence of usage raised suspicions to us that all was not as it seemed. On further analysis, the alleged records of usage were demonstrated to be default entries when Google Chrome is installed (giving the user the option to use Incognito mode), with various date stamps relating to when Google Chrome has been updated rather than date the function was used. There was no evidence to support that the user had ever used Incognito mode.
These examples serve to demonstrate why it is critical to receive impartial technical advice in cases relating to breaches of Sexual Harm Prevention Orders, as the issues involved can often be complex and sometimes without a defined answer. It is, of course, for the Court to decide whether an action constitutes a breach of a SHPO, but we can clearly set out the technical interpretations and where and ambiguities may lie, so the Court can make a fully informed decision, not only for the trial itself, but also to consider any mitigation for sentencing purposes. Contact us to discuss how we may be able assist in clarifying the issues.
