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Control of Sex Offenders 

Control of Sex Offenders
Chapter:
Control of Sex Offenders
Author(s):

Paul Connor

DOI:
10.1093/law/9780198806103.003.0012
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Subscriber: null; date: 15 August 2018

1.12.1 Introduction

Part 2 of the Sexual Offences Act 2003 sets out the notification requirements for sex offenders. It deals with sexual harm prevention orders and sexual risk orders which aim to provide enhanced protection for both the public in the United Kingdom and children and adults abroad.

What follows is a summary of the main practical provisions, but reference should be made to the statutory text and the non-statutory guidance issued by the Home Office on part 2 of the 2003 Act for complete coverage.

1.12.2 Offenders Covered by Notification Requirements

A person is subject to the notification requirements for the period set out in s. 82 (the notification period) if:

  • he/she is convicted of an offence listed in sch. 3—this covers most of the commonly occurring sex offences set out elsewhere in chapter 1.11 (for example, the offences of rape, assault by penetration, sexual touching, sexual offences against children, offences associated with an abuse of a position of trust and familial child sex offences);

  • he/she is found not guilty of such an offence by reason of insanity;

  • he/she is found to be under a disability and to have done the act charged in respect of such an offence; or

  • he/she is cautioned in respect of such an offence, not only in England and Wales but for an offence in Northern Ireland as well (s. 80).

In relation to s. 80 (and part 2 generally) a ‘conviction’ includes a conviction which results in a conditional but not an absolute discharge: s. 134 provides that in relation to an order for a conditional discharge, the legislation that deems a conviction with an absolute or conditional discharge not to be a conviction, does not apply in relation to this part of the Act.

Where the above findings, convictions or cautions are made, the court or the police may issue a certificate that will be evidence of that fact (s. 92) and the Secretary of State may make regulations setting out the form of certificate to be used.

A person subject to the notification requirements is referred to in the legislation as a ‘relevant offender’.

Many sex offenders were already subject to the previous notification requirements under part 1 of the Sex Offenders Act 1997. Some of these people continue to be subject to the notification requirements. For the full details as to these offenders see s. 81.

Some relevant offenders will have attracted that status (and the relevant notification requirements—see para. 1.12.2.1) by reason of a conviction etc. for one of the sexual offences abolished by the Sexual Offences Act 2003 (buggery or gross indecency between men under s. 12 or 13 of the Sexual Offences Act 1956). Schedule 4 to the 2003 Act and Home Office Circular 19/2004 deal with the procedure whereby such offenders may apply to the Secretary of State for removal of their notification requirements.

1.12.2.1 The Notification Period

Section 82 sets out the notification period. The indefinite notification period can be reviewed (see para. 1.12.2.10). The notification period is as follows:

Where a person is under 18 on the relevant date, references to a period of 10 years, 7 years, 5 years or 2 years are substituted by a reference to half that period (s. 82(2)).

Description of relevant offender

Notification period

A person who, in respect of the offence, is or has been sentenced to imprisonment for a term of 30 months or more

An indefinite period beginning with the relevant date

A person who, in respect of the offence or finding, is or has been admitted to a hospital subject to a restriction order

An indefinite period beginning with that date

A person who, in respect of the offence, is or has been sentenced to imprisonment for a term of more than 6 months but less than 30 months

10 years beginning with that date

A person who, in respect of the offence, is or has been sentenced to imprisonment for a term of 6 months or less

7 years beginning with that date

A person who, in respect of the offence or finding, is or has been admitted to a hospital without being subject to a restriction order

7 years beginning with that date

A person within s. 80(1)(d) (cautioned)

2 years beginning with that date

A person in whose case an order for conditional discharge is made in respect of the offence

The period of conditional discharge

A person of any other description

5 years beginning with the relevant date

Meaning of Cautioned

Cautioned means cautioned by a police officer after the person concerned has admitted the offence.

The Act makes specific provisions for offenders who are sentenced for more than one offence and for those who, having been initially found to be under a disability, are later tried for the offence.

1.12.2.2 Initial Notification

A relevant offender must notify the police of certain information within a specified time period from the ‘relevant date’. Generally the relevant date will be the date of conviction, finding, caution or, in the case of people covered by the Sex Offenders Act 1997, the appropriate date under that Act.

Section 83(1) states that relevant offenders must, within the period of three days beginning with the relevant date (or, if later, the commencement of part 2 of the Act), notify to the police the information set out in s. 83(5). There are some exceptions made in relation to offenders covered by the earlier legislation and those who have already complied with s. 83(1) at the date of being dealt with by the court.

The information required under s. 83(5) includes (but is not limited to) the relevant offender’s:

  • date of birth;

  • national insurance number;

  • name on the relevant date and on the date on which notification is given. If the offender used one or more other names on those dates, each of those names;

  • home address on the relevant date and on the date on which notification is given;

  • the address of any other premises in the United Kingdom at which, at the time the notification is given, the offender regularly resides or stays; and

  • if the relevant offender holds a passport, the passport number and the full name of the offender as it appears on the passport (if the offender does not hold a passport but holds an alternative form of identity document then a description of the identity document is required along with an issue number (if applicable) and the offender’s full name as it appears in the document);

  • certain information about their bank account (account numbers, sort codes, validation and expiry dates);

  • any prescribed information.

In calculating the time under s. 83(1) account is not generally taken of time remanded in custody by order of a court, detention in a hospital or while out of the United Kingdom (s. 83(6)).

Home address means the address of the relevant offender’s sole or main residence in the United Kingdom, or where the offender has no such residence, the address or location of a place in the United Kingdom where he/she can regularly be found and, if there is more than one such place, such one of those places as the person may select (s. 83(7)). This means that, if offenders are of no fixed abode, they can give details of any shelter or other place where they are regularly to be found.

1.12.2.3 Notification Requirements: Changes

Section 84(1) states that within the period of three days beginning with:

  • the offender using a name which has not been notified to the police under the relevant legislative provisions;

  • any change of home address;

  • the offender having resided or stayed, for a ‘qualifying period’ (seven days or two or more periods in any 12 months which together amount to seven days), at any premises in the United Kingdom the address of which has not been notified to the police under the relevant legislative provision; or

  • the offender’s release from custody pursuant to an order of a court or from imprisonment, service detention or detention in a hospital,

  • a relevant offender must notify to the police that name, the new home address, the address of those premises or (as the case may be) the fact that he/she has been released, and (in addition) the information set out in s. 83(5).

Any notification under the above requirement can be given in advance of the change, provided the actual change takes place within a given ‘margin’ of time either side of the notified date. For that reason the relevant offender must also specify the date when the event is expected to occur (s. 84(2)). As long as the change notified in advance takes place no earlier than two days before the date notified or no more than three days after, the offender does not need to notify the police of the actual date when it took place. However, if the change takes place outside this margin, the offender must notify the change as required by s. 84(1), e.g. within three days of the actual change. Similarly, if the change takes place three days or more after the date notified in advance, the offender must also tell the police within six days that the change of which advance notice was given did not occur as specified (s. 84(3) and (4)).

As with the initial notification requirements, account is not generally taken of time spent in custody by order of a court, detention in a hospital or while out of the United Kingdom (s. 84(5)).

The Home Secretary may amend, through secondary legislation, the notification requirements placed on those convicted or cautioned of relevant sexual offences or otherwise subject to the sex offender notification requirements. The Act also allows the Secretary of State to add to the information that sex offenders subject to the notification requirements must notify the police. If the Secretary of State does add to the information required to be notified by a sex offender and there is a change in those details, the offender must notify the police within three days of the change. As occurs with the current information which must be notified, the sex offender can notify the police of an expected change in the prescribed details before the change occurs. The Secretary of State may also provide in regulations that an offender who does not have a sole or main residence in the United Kingdom must notify his/her details to the police more frequently.

1.12.2.4 Notification Requirements: Periodic Notification

Relevant offenders must also re-notify the police of the details in s. 83(5) (see para. 1.12.2.2) within one year of either the initial notification or the notification of the changes unless they have already notified them within that period (under s. 84) as a result of changing circumstances (s. 85). In summary this means that, if a relevant offender does not change his/her name or address, or stay away from home for seven days or more, he/she will have to re-notify the police of the relevant details within a year of the initial notification and every year afterwards. Under s. 85(3), if offenders are detained or are abroad when their periodic notification becomes due, they have until three days after their release/return to the United Kingdom to re-notify.

1.12.2.5 Notification Requirements: Travel Outside the United Kingdom

The Secretary of State has the power to make regulations setting out the notification requirements for relevant offenders who travel outside the United Kingdom (s. 86). The current regulations are the Sexual Offences Act 2003 (Travel Notification Requirements) Regulations 2004 (SI 2004/1220). These regulations were amended by SI 2012/1876.

1.12.2.6 Method of Notification and Related Matters

Relevant offenders comply with the obligations to notify the police set out above by attending at such police station in their local police area as the Secretary of State may by regulations prescribe—see the Sexual Offences Act 2015 (Prescribed Police Stations) (No. 2) Regulations 2015 (SI 2015/1523) for a list of specific police stations identified for this purpose (or, if there is more than one, at any of them), and giving an oral notification to any police officer, or to any person authorised for the purpose by the officer in charge of the station (s. 87(1)). ‘Local police area’ means:

  • the police area in which the offender’s home address is situated or,

  • if the offender does not have a home address, the police area in which the home address last notified is situated or,

  • if the offender does not have a home address or in the absence of any such notification, the police area in which the court which last dealt with the offender for a relevant matter is situated (s. 88).

If the notification relates to staying away from home for seven days or more, or to an advance change of address, the offender may give the notification at a police station in the police area of the other address (s. 87(2)).

When the offender gives a notification to the police (other than in relation to travel outside the United Kingdom), the police can fingerprint and/or photograph the offender (s. 87(4)) for the purpose of verifying the identity of the relevant offender. ‘Photograph’ includes any process by means of which an image may be produced and therefore would include methods such as iris scans (s. 88(2)).

1.12.2.7 Notification Orders

In addition to the above, a chief officer of police may apply to a magistrates’ court for an order against a person who has been convicted, cautioned or had another relevant finding recorded against him/her for a relevant offence outside the United Kingdom (s. 97). A relevant offence here means an offence abroad which, had it been committed here, would also have been a sch. 3 offence. This provision applies where the relevant offender lives in the chief officer’s police area or where the chief officer believes that the offender is intending to come to that police area. This means that a chief officer can apply to a magistrates’ court for a notification order against a foreign national who has been convicted abroad and who is intending to come to the chief officer’s police area. Notification orders will, broadly speaking, make the offender subject to the notification requirements, however there are specific differences in relation to the calculation of the relevant periods (s. 97(3) and (4) and s. 98).

1.12.2.8 Interim Notification Orders

In addition, the police may apply for an interim notification order while the application for a full notification order is determined (s. 100). Such an interim order may be necessary because the relevant paperwork is likely to delay the hearing for the main order. Once an interim notification order is granted, the relevant offender becomes subject to the notification requirements above and the notification period starts from the date of service of the order (s. 100(5) and (6)).

An offender has a right of appeal against both interim or full notification orders to the Crown Court (s. 101).

1.12.2.9 Young Offenders: Parental Directions

Section 89 of the Sexual Offences Act 2003 makes provisions for young offenders and allows the courts to direct a person with parental responsibility for the offender to comply with his/her notification requirements instead—until either the young offender reaches 18 or an earlier date specified by the court. Under a parental direction the parent must ensure that the young offender attends at the police station with the parent, when a notification is being given (s. 89(2)(b)).

A chief officer may (by complaint to any magistrates’ court whose commission area includes any part of his/her police area) apply for a parental direction in respect of any relevant offender who is under 18 and who resides in that police area, or who the chief officer believes is in or is intending to come to that police area (s. 89(4)). A court may alter or discharge a parental direction order on application by the offender, parent or relevant chief officer (s. 90). A variation or alteration might be needed where, for example, the offender’s parents divorce or where they cannot exercise enough control over the offender to ensure compliance with the notification requirements.

1.12.2.10 Review of Requirements

As a result of R (On the Application of F (by his litigation friend F)) and Thompson (FC) v Secretary of State for the Home Department [2010] UKSC 17, the Supreme Court made a declaration under s. 4 of the Human Rights Act 1998 that the indefinite notification requirements of the Sexual Offences Act 2003 were incompatible with Article 8 of the European Convention on Human Rights. SI 2012/1883 introduced a remedy in the form of a mechanism whereby a person subject to indefinite notification requirements under the 2003 Act can apply for a review and determination that those requirements shall cease.

The review process is triggered by an offender who is subject to indefinite notification requirements making an application to the police. The offender would be entitled to make an application 15 years following his/her release from custody. The review will be carried out by the police and will be completed on the basis of a range of factors, including the information provided from the Responsible Authority and Duty to Co-operate agencies which operate within the Multi-Agency Public Protection Arrangements (MAPPA) framework (ss. 91A to 91F of the Sexual Offences Act 2003).

1.12.2.11 Failure to Notify

Offence Failing to Comply with Notification Requirements—Sexual Offences Act 2003, s. 91

  • Triable either way

  • Five years’ imprisonment on indictment

  • Six months’ and/or a fine summarily

The Sexual Offences Act 2003, s. 91 states:

  1. (1) A person commits an offence if he—

    1. (a) fails, without reasonable excuse, to comply with section 83(1), 84(1), 84(4)(b), 85(1), 87(4) or 89(2)(b) or any requirement imposed by regulations made under section 86(1); or

    2. (b) notifies to the police, in purported compliance with section 83(1), 84(1) or 85(1) or any requirement imposed by regulations made under section 86(1), any information which he knows to be false.

Keynote

Reasonable excuse will be a question of fact in all the circumstances for the court to decide. In relation to a parental direction, it is more likely that there will be such an excuse, particularly if parents have done all they can to ensure that the young offender comes with them to the police station.

This is a continuing offence, in that offenders continue to commit it for each and every day that they fail to give notification as required (s. 91(3)). Although offenders can only be prosecuted once for the same continuing failure, if they are convicted for the above offence and then fail again to comply, they commit another offence.

1.12.2.12 Supply of Information for Verification

Section 94 provides that a specified person or body may supply information to the Secretary of State (or a person supplying a relevant function to the Secretary of State) for the purposes of the prevention, detection, investigation or prosecution of offences under Part 2 of the Act, for use in verifying that information. The information is that which was notified to the police under ss. 83, 84 or 85 (see para. 1.12.2.2) or the equivalent earlier legislation (s. 2(1)–(3) of the Sex Offenders Act 1997). Those people and bodies are:

  • a chief officer of police

  • the Director General of the National Crime Agency.

Verification and Use

Verifying the information here means checking its accuracy by comparing it with information held by the Secretary of State or bodies responsible for functions such as social security, child support, employment or training, the Identity and Passport Service or the Driver and Vehicle Licensing Agency (DVLA). Checking accuracy includes compiling a report, though this part of the Act does not authorise anything that would amount to a breach of the Data Protection Act 1998. The recipient of the report must be one of the people/bodies set out above and they may use the information only for the purposes of the prevention, detection, investigation or prosecution of an offence under part 2 but can retain it whether or not it is in fact used for that purpose (s. 95).

1.12.2.13 Power of Entry—Risk Assessment of Sex Offenders

Section 96B of the Sexual Offences Act 2003 provides a power of entry and search to risk assess sex offenders subject to the notification requirements.

The power enables the police to gather all the information they need about a relevant offender for the purposes of assessing the risks the offender poses, even if he/she is in apparent compliance with the notification requirements and there are insufficient grounds to believe he/she has committed a new substantive offence.

Under the section, the police are allowed to seek a warrant from a magistrates’ court to enter and search, by force if necessary, the last notified address of a registered sex offender (or a place where there are grounds to believe the offender resides or can be regularly found) where there have been two failed attempts to enter a specified premises, for the purpose of assessing the risks the offender poses.

The application must be made by a senior police officer, not below the rank of superintendent. The senior police officer should attend court in person to apply for the warrant.

A warrant will only be issued by magistrates if they are satisfied that the following conditions have been met:

  • that the offender is a relevant offender (i.e. an offender subject to the notification requirements)

  • that the offender is not: remanded or committed to custody by order of a court; serving a sentence of imprisonment or a term of service detention; detained in hospital; or outside the United Kingdom

  • that the address of each set of premises to which the warrant relates is either the home address which was last notified in accordance with part 2 of the Sexual Offences Act 2003, or there are reasonable grounds to believe that the registered sex offender resides there or may regularly be found there

  • that it is necessary for the constable to enter and search the premises for the purpose of assessing the risk posed by the offender

  • that on at least two occasions, a constable has sought entry to the premises in order to search them for that purpose and has been unable to obtain entry for that purpose.

The warrant may also authorise entry to and search of premises on more than one occasion if, on the application, the magistrate is satisfied that it is necessary to authorise multiple entries for the purpose of risk assessment. When a warrant authorises multiple entries, the number of entries authorised may be unlimited or limited to a maximum.

If more than one address is to be searched, the constable will need to attempt (and fail) to enter each address for which the warrant is sought.

In circumstances where a constable has been allowed into the premises to search for the purposes of risk assessment, but not allowed into parts of the premises (e.g. a particular room), this will count as being ‘unable to obtain entry’ for the purposes of risk assessment.

As a warrant does not grant a power of seizure, where evidence of a crime is found during the course of a search under such a warrant, constables can use their general power of seizure under s. 19 of the Police and Criminal Evidence Act 1984.

1.12.3 Orders to Control Sex Offenders

Section 113 of and sch. 5 to the Anti-social Behaviour, Crime and Policing Act 2014 amend the Sexual Offences Act 2003 to repeal the Sexual Offences Prevention Order (SOPO), the Foreign Travel Order (FTO) and the Risk of Sexual Harm Order (RoSHO) in England and Wales and replace them with the Sexual Harm Prevention Order (SHPO) and the Sexual Risk Order (SRO).

The grounds on which SHPOs and SROs may be made are wider than their predecessors which means that they can be used to manage risks against adults as well as children. The available prohibitions are wider so, for example, foreign travel restrictions can be imposed under either order. In addition to the police, the National Crime Agency will also have the power to apply for the orders.

Section 136ZB of the Sexual Offences Act 2003 states that where a court in England and Wales makes an order listed in the first column of the table below in relation to a person who is already subject to an order listed opposite it in the second column, the earlier order ceases to have effect (whichever part of the United Kingdom it was made in) unless the court states otherwise.

New order

Earlier order

Sexual harm prevention order

—sexual offences prevention order;

—foreign travel order.

Sexual risk order

—risk of sexual harm order;

—foreign travel order.

1.12.4 Sexual Harm Prevention Orders (SHPO)

A SHPO is a civil preventative order designed to protect the public from sexual harm.

The Sexual Offences Act 2003, s. 103A states:

  1. (1) A court may make an order under this section (a ‘sexual harm prevention order’) in respect of a person (‘the defendant’) where subsection (2) or (3) applies to the defendant.

  2. (2) This subsection applies to the defendant where—

    1. (a) the court deals with the defendant in respect of—

      1. (i) an offence listed in Schedule 3 or 5, or

      2. (ii) a finding that the defendant is not guilty of an offence listed in Schedule 3 or 5 by reason of insanity, or

      3. (iii) a finding that the defendant is under a disability and has done the act charged against the defendant in respect of an offence listed in Schedule 3 or 5,

        and

    2. (b) the court is satisfied that it is necessary to make a sexual harm prevention order, for the purpose of—

      1. (i) protecting the public or any particular members of the public from sexual harm from the defendant, or

      2. (ii) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

Keynote

A court may make a SHPO when it deals with a person in respect of an offence listed in sch. 3 or sch. 5 to the Sexual Offences Act 2003, or in the case of an offender lacking capacity, deals with that offender in respect of a finding relating to such an offence.

The order can include any prohibition the court considers necessary for this purpose, including the prevention of foreign travel to the country or countries specified in the order (or to all foreign countries, if that is what the order provides) (see para. 1.12.4.3).

Schedule 3 or 5 Offences

The offences listed in schs 3 and 5 are numerous and include a large number of the offences detailed in chapter 1.11 such as rape, assault by penetration, sexual touching, sexual offences against children, offences associated with an abuse of a position of trust and familial child sex offences. Offences listed in sch. 5 include offences of murder, manslaughter, kidnapping, false imprisonment and offences against the person under ss. 20 and 18 of the Offences Against the Person Act 1861.

For a full list of the offences, reference should be made to schs 3 and 5 to the Act.

The Public

This means the public in the United Kingdom.

Sexual Harm

The phrase ‘sexual harm’ from a person means physical or psychological harm caused:

  1. (a) by the person committing one or more offences listed in sch. 3, or

  2. (b) (in the context of harm outside the United Kingdom) by the person doing, outside the United Kingdom, anything which would constitute an offence listed in sch. 3 if done in any part of the United Kingdom.

Children

The term ‘child’ means a person under 18.

Vulnerable Adults

A ‘vulnerable adult’ means a person aged 18 or over whose ability to protect him/herself from physical or psychological harm is significantly impaired through physical or mental disability or illness, through old age or otherwise.

Section 103K provides for rules of court to be made to enable linked applications for orders involving individuals aged under 18 and other individuals aged 18 or over to be heard together in youth court, where the youth court considers this to be in the interests of justice. It also provides for rules of court to be made in relation to individuals who reach the age of 18 after proceedings have begun, including rules prescribing circumstances in which proceedings may or must remain in the youth court and rules about the transfer of proceedings to the magistrates’ court.

1.12.4.1 Police/NCA Application for a SHPO

The Sexual Offences Act 2003, s. 103A states:

  1. (3) This subsection applies to the defendant where—

    1. (a) an application under subsection (4) has been made in respect of the defendant and it is proved on the application that the defendant is a qualifying offender, and

    2. (b) the court is satisfied that the defendant’s behaviour since the appropriate date makes it necessary to make a sexual harm prevention order, for the purpose of—

      1. (i) protecting the public or any particular members of the public from sexual harm from the defendant, or

      2. (ii) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

  2. (4) A chief officer of police or the Director General of the National Crime Agency (‘the Director General’) may by complaint to a magistrates’ court apply for a sexual harm prevention order in respect of a person if it appears to the chief officer or the Director General that—

    1. (a) the person is a qualifying offender, and

    2. (b) the person has since the appropriate date acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made.

  3. (5) A chief officer of police may make an application under subsection (4) only in respect of a person—

    1. (a) who resides in the chief officer’s police area, or

    2. (b) who the chief officer believes is in that area or is intending to come to it.

  4. (6) An application under subsection (4) may be made to any magistrates’ court acting for a local justice area that includes—

    1. (a) any part of a relevant police area, or

    2. (b) any place where it is alleged that the person acted in a way mentioned in subsection (4)(b).

Keynote

A magistrates’ court (or youth court, where the defendant is under 18) may make a SHPO when an application for such an order is made to it by the chief officer of police or the Director General of the NCA in respect of a person. The court must be satisfied that the person concerned is a ‘qualifying offender’.

Qualifying Offender

A qualifying offender is a person who has been dealt with by a court in respect of an offence listed in sch. 3 (other than at para. 60) or sch. 5 to the Sexual Offences Act or has been dealt with by a court abroad in respect of an act which was an offence under the law of that territory and which would, if committed in any part of the United Kingdom, have constituted an offence listed in sch. 3 (other than at para. 60) or sch. 5.

Appropriate Date

The ‘appropriate date’, in relation to a qualifying offender, means the date or (as the case may be) the first date on which the offender was convicted, found or cautioned as mentioned in the above paragraph (Qualifying Offender).

In addition to being satisfied that the person is a qualifying offender, the court must be satisfied that the person’s behaviour, since the date on which they were first dealt with in this way, means it is necessary to make the order for the purpose of:

  • protecting the public or any particular members of the public from sexual harm from the defendant; or

  • protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

The Director General must as soon as practicable notify the chief officer of police for a relevant police area of any application that the Director has made under subs. (4) (s. 103(7)).

Where the defendant is a child, a reference in this section to a magistrates’ court is to be taken as referring to a youth court (subject to any rules of court made under s. 103K(1)) (s. 103(8)).

‘Relevant police area’ means:

    1. (a) where the applicant is a chief officer of police, the officer’s police area;

    2. (b) where the applicant is the Director General—

      1. (i) the police area where the person in question resides, or

      2. (ii) a police area which the Director General believes the person is in or is intending to come to (s. 103(9)).

1.12.4.2 Effect of a SHPO

The Sexual Offences Act 2003, s 103C states:

  1. (1) A sexual harm prevention order prohibits the defendant from doing anything described in the order.

  2. (2) Subject to section 103D(1), a prohibition contained in a sexual harm prevention order has effect—

    1. (a) for a fixed period, specified in the order, of at least 5 years, or

    2. (b) until further order.

  3. (3) A sexual harm prevention order—

    1. (a) may specify that some of its prohibitions have effect until further order and some for a fixed period;

    2. (b) may specify different periods for different prohibitions.

Keynote

An order will last a minimum of five years and has no maximum period (with the exception of any foreign travel restriction which, if applicable, has a maximum duration of five years but may be renewed).

Section 103C(4) states that the only prohibitions that may be included in a SHPO are those necessary for the purpose of:

  1. (a) protecting the public or any particular members of the public from sexual harm from the defendant, or

  2. (b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

Where a court makes a SHPO in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect (s. 103C(6)).

1.12.4.3 SHPOs—Prohibitions on Foreign Travel

Section 103D details the provisions in relation to prohibitions on foreign travel. Such a prohibition must be for a fixed period of not more than five years (s. 103D(1)). The prohibition can be extended for a further period (of no more than five years each time) under s. 103E.

Under s. 103D(2) the prohibition can prohibit travelling to:

  • any country outside the United Kingdom named or described in the order,

  • any country outside the United Kingdom other than a country named or described in the order, or

  • any country outside the United Kingdom.

Any SHPO that contains a prohibition on travel must require the defendant to surrender all of his/her passports at a police station specified in the order on or before the date when the prohibition takes place or within a period specified in the order (s. 103D(4)). Unless the person is subject to an equivalent prohibition under another order, all passports surrendered must be returned as soon as is reasonably practicable after he/she ceases to be subject to a SHPO containing the prohibition on foreign travel (s. 103D(5)). This does not apply in relation to a passport issued by or on behalf of the authorities of a country outside the United Kingdom if the passport has been returned to those authorities, or to a passport issued by or on behalf of an international organisation if the passport has been returned to that organisation (s. 103D(6)).

In this section ‘passport’ means:

  • a United Kingdom passport within the meaning of the Immigration Act 1971;

  • a passport issued by or on behalf of the authorities of a country outside the United Kingdom, or by or on behalf of an international organisation;

  • a document that can be used (in some or all circumstances) instead of a passport.

1.12.4.4 SHPOs—Variations, Renewals and Discharges

Section 103E states that an application to vary, renew or discharge a SHPO may be made by:

  • the defendant;

  • the chief officer of police for the area in which the defendant resides;

  • a chief officer of police who believes that the defendant is in, or is intending to come to that officer’s police area; or

  • where the order was made on an application by a chief officer of police under s. 103A(4), that officer.

After hearing the application the court may make any order, varying, renewing or discharging the sexual harm prevention order, that the court considers appropriate (s. 103E(4)). Such an order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of—

  1. (a) protecting the public or any particular members of the public from sexual harm from the defendant, or

  2. (b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

Any renewed or varied order may contain only such prohibitions as are necessary for this purpose (s. 103E(5)).

Keynote

Section 103E(7) states that the court must not discharge an order before the end of five years beginning with the day on which the order was made, without the consent of the defendant and:

  1. (a) where the application is made by a chief officer of police, that chief officer, or

  2. (b) in any other case, the chief officer of police for the area in which the defendant resides.

Subsection (7) does not apply to an order containing a prohibition on foreign travel and no other prohibitions (s. 103E(8)).

1.12.4.5 Interim SHPOs

Where an application under s. 103A(4) (‘the main application’) has not been determined, an application for an order under this section (‘an interim sexual harm prevention order’) may be made by the complaint by which the main application is made, or if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.

In appropriate cases, this enables the court to place prohibitions on the person (and results in their becoming subject to the notification requirements) pending the full application for the order being determined (s. 103F).

1.12.4.6 SHPOs and Interim SHPOs—Notification Requirements

Where a SHPO is made in respect of a defendant who was a relevant offender immediately before the making of the order, and the defendant would (apart from this subsection) cease to be subject to the notification requirements of this part while the order (as renewed from time to time) has effect, the defendant remains subject to the notification requirements (s. 103G(1)).

Where a SHPO is made in respect of a defendant who was not a relevant offender immediately before the making of the order, the order causes the defendant to become subject to the notification requirements from the making of the order until the order (as renewed from time to time) ceases to have effect. This applies to the defendant from the date of service of the order (s. 103G (2) and (3)).

These notification requirements apply equally to an interim SHPO (s. 103G(4)).

On an application for a SHPO made by a chief officer of police, the court must make a notification order in respect of the defendant (either in addition to or instead of a SHPO) if the applicant invites the court to do so, and it is proved that the conditions in s. 97(2)–(4) are met (see para. 1.12.2.7) (s. 103G(6)).

On an application for an interim SHPO made by a chief officer of police, the court may, if it considers it just to do so, make an interim notification order (either in addition to or instead of an interim SHPO) (s. 103G(7)).

1.12.4.7 SHPOs and Interim SHPOs—Appeals

There is a system by which the defendant can appeal against the making of a SHPO (including an interim order)—this is set out in s. 103H. There is no equivalent section allowing the police to appeal against a decision.

1.12.4.8 Breach of a SHPO or Interim SHPO

Offence Breach of SHPO or Interim SHPO—Sexual Offences Act 2003, s. 103I

  • Triable either way

  • Five years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 103I states:

  1. (1) A person who, without reasonable excuse, does anything that the person is prohibited from doing by—

    1. (a) a sexual harm prevention order,

    2. (b) an interim sexual harm prevention order,

    3. (c) a sexual offences prevention order,

    4. (d) an interim sexual offences prevention order, or

    5. (e) a foreign travel order,

      commits an offence.

  2. (2) A person commits an offence if, without reasonable excuse, the person fails to comply with a requirement imposed under section 103D(4).

Keynote

Where a person is convicted of an offence under this section, it is not open to the court to make, in respect of the offence, an order for conditional discharge (s. 103I(4)).

The requirement under s. 103D(4) is to surrender passports at a police station (see para. 1.12.4.3).

1.12.5 Sexual Risk Orders (SRO)

The SRO is a civil preventative order designed to protect the public from sexual harm which replaces the Risk of Sexual Harm Order (RoSHO). The person concerned (‘the defendant’) may or may not have a conviction for a sexual (or any other) offence.

1.12.5.1 SROs—Applications, Grounds and Effects

The Sexual Offences Act 2003, s. 122A states:

  1. (1) A chief officer of police or the Director General of the National Crime Agency (‘the Director General’) may by complaint to a magistrates’ court apply for an order under this section (a ‘sexual risk order’) in respect of a person (‘the defendant’) if it appears to the chief officer or the Director General that the following condition is met.

  2. (2) The condition is that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made.

  3. (3) A chief officer of police may make an application under subsection (1) only in respect of a person—

    1. (a) who resides in the chief officer’s police area, or

    2. (b) who the chief officer believes is in that area or is intending to come to it.

  4. (4) An application under subsection (1) may be made to any magistrates’ court acting for a local justice area that includes—

    1. (a) any part of a relevant police area, or

    2. (b) any place where it is alleged that the person acted in a way mentioned in subsection (2).

Keynote

Where the defendant is a child, a reference in that section to a magistrates’ court is to be taken as referring to a youth court (subject to any rules of court made under s. 122K(1) (s. 122B(2)).

The Director General must, as soon as practicable, notify the chief police officer for a relevant police area of any application that the Director has made under s. 122A(1) (s. 122A(5)). For ‘relevant police area’ see para. 1.12.4.1).

Under s. 122A(6), the SRO will be available to the police and the NCA on application to a magistrates’ court in relation to a defendant who has done an act of a sexual nature and, as a result, the police or NCA have reasonable grounds to believe that an order is necessary to:

  • protect the public or any particular members of the public from harm from the defendant or

  • protect children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.

‘Harm’ from the defendant means physical or psychological harm caused by the defendant doing an act of a sexual nature.

For the meaning of ‘the public’, ‘child’ and ‘vulnerable adults’ see para. 1.12.4.

The court may make an order if it is satisfied that the defendant has done an act of a sexual nature as a result of which it is necessary to make the order for one or both of those purposes.

The SRO differs from the previous RoSHO in that it can be made after the defendant has committed one such act, whereas the RoSHO could only be made following two acts.

The order can include any prohibition the court considers necessary for this purpose, including the prevention of foreign travel to the country or countries specified. The order may specify different periods for different prohibitions (s. 122A(8)).

The order will last a minimum of two years and has no maximum period (with the exception of any foreign travel restriction which expires after a maximum of five years, unless renewed) (s. 122A(7)).

Where a court makes a SRO in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect (s. 122A(10)).

1.12.5.2 SRO—Prohibitions on Foreign Travel

The law governing a prohibition on foreign travel in relation to a SRO (s. 122C) operates in exactly the same way as a prohibition on foreign travel does in relation to a SHPO (see para. 1.12.4.3).

1.12.5.3 SRO—Variations, Renewals and Discharges

Section 122D provides that a court can vary, renew or discharge a SRO upon the application of the defendant or the police. With some minor variations (see the Keynote below), such variations, renewals and discharges are regulated in the same way as those governing the variation, renewal and discharge of SHPOs (see para. 1.12.4.4).

Keynote

Although the law in relation to the variation, renewal or discharge of SHPOs and SROs operates in the same way, it should be remembered that SHPOs relate to ‘sexual harm’ whereas SROs relate to ‘harm’.

An SRO cannot be discharged before the end of two years from the date the order was made without the consent of the defendant and the police, with the exception of an order containing only foreign travel prohibitions (s. 122D(5)).

1.12.5.4 Interim SROs

Section 122E allows the police or the NCA to apply for an interim SRO where an application has been made for the full order. This enables a prohibition to be placed on the defendant’s behaviour and to ensure that they will be subject to the notification requirements pending the full order being determined. The application process for an interim SRO follows that of an interim SHPO (see para. 1.12.4.5).

1.12.5.5 SROs and Interim SROs—Notification Requirements

The Sexual Offences Act 2003, s. 122F states:

  1. (1) A person in respect of whom a court makes—

    1. (a) a sexual risk order (other than one that replaces an interim sexual risk order), or

    2. (b) an interim sexual risk order,

      must, within the period of 3 days beginning with the date of service of the order, notify to the police the information set out in subsection (2) (unless the person is subject to the notification requirements of this Part on that date).

  2. (2) The information is—

    1. (a) the person’s name and, where the person uses one or more other names, each of those names;

    2. (b) the person’s home address.

  3. (3) A person who—

    1. (a) is subject to a sexual risk order or an interim sexual risk order (but is not subject to the notification requirements of this Part), and

    2. (b) uses a name which has not been notified under this section (or under any other provision of this Part), or changes home address,

      must, within the period of 3 days beginning with the date on which that happens, notify to the police that name or (as the case may be) the new home address.

  4. (4) Sections 87 (method of notification and related matters) and 91 (offences relating to notification) apply for the purposes of this section—

    1. (a) with references to section 83(1) being read as references to subsection (1) above,

    2. (b) with references to section 84(1) being read as references to subsection (3) above, and

    3. (c) with the omission of section 87(2)(b).

1.12.5.6 SROs and Interim SROs—Appeals

There is a system by which the defendant can appeal against the making of a SHPO (including an interim order)—this is set out in s. 122G. There is no equivalent section allowing the police to appeal against a decision.

1.12.5.7 Breach of SRO

Offence Breach of SRO or Interim SRO—Sexual Offences Act 2003, s. 122H

  • Triable either way

  • Five years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 122H states:

  1. (1) A person who, without reasonable excuse, does anything that the person is prohibited from doing by—

    1. (a) a sexual risk order,

    2. (b) an interim sexual risk order,

    3. (c) a risk of sexual harm order,

    4. (d) an interim risk of sexual harm order,

      commits an offence.

  2. (2) A person commits an offence if, without reasonable excuse, the person fails to comply with a requirement imposed under section 122C(4).

Keynote

The requirement under s. 122C(4) is to surrender passports at a police station (in the same way a SHPO requirement operates: see para. 1.12.4.3).

Where a person is convicted of an offence under this section, it is not open to the court to make, in respect of the offence, an order for conditional discharge (s. 122H(4)).

If a person is convicted of or cautioned for an offence under s. 122H (or found not guilty by reason of insanity or to have been under a disability), and the defendant was a relevant offender immediately before this section applied to the defendant and the defendant would (apart from this subsection) cease to be subject to the notification requirements of this part while the relevant order (as renewed from time to time) has effect, the defendant remains subject to the notification requirements (s. 122I(3)). Where the defendant was not a relevant offender immediately before this section applied to the defendant then he/she becomes subject to the relevant notification requirements until the relevant order ceases to have effect (s. 122I(4)).

The ‘relevant date’ here is the date on which this section first applied to the defendant.

In this section, ‘relevant order’ means:

  • where the conviction, finding or caution is in respect of a breach of a sexual risk order or a risk of sexual harm order, that order;

  • where the conviction, finding or caution is in respect of a breach of an interim sexual risk order or an interim sexual harm order, any sexual risk order or risk of sexual harm order made on the hearing of the application to which the interim order relates or, if no such order is made, the interim order

(s. 122I(6)).