Sexual Harm Prevention Orders

The court may impose a Sexual Harm Prevention Order ('SHPO') where a person is convicted of an offence contained in either schedule 3 or 5 of the Sexual Offences Act 2003 (s. 345 of Sentencing Act 2020: ‘SA 2020’). The power also arises where an offender has been found not guilty by reason of insanity in relation to an offence in either schedule, or due to a finding that the defendant is under a disability and has done the relevant act contained in an offence in either schedule (s. 103A of the Sexual Offences Act 2003: ‘SOA 2003’).

Pursuant to section 346(1) of the SA 2020, the court may only make such an order ‘if satisfied that it is necessary to do so for the purpose of –

  1. Protecting the public or any particular members of the public from sexual harm from the offender, or
  2. Protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the offender outside the United Kingdom’.

‘Sexual harm’ is defined by s. 344(1) of the SA 2020 as ‘physical or psychological harm’ caused by the person committing one or more offences listed in schedule 3 to the SOA 2003. With regards to harm outside of the UK, it is ‘physical or psychological harm’ caused by the person doing anything outside of the UK which would constitute an offence contained in schedule 3 if carried out in the UK.

It is also possible for a SHPO application to be made to the Magistrates’ Court under s. 103A(4) of the SOA 2003 by the chief officer of police, the Director General of the National Crime Agency, the Chief Constable of the British Transport Police Force and the Chief Constable of the Ministry of Defence Police. The test is whether (a) the defendant is a qualifying offender and (b) the proposed subject of the order 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’. The court must be satisfied on the balance of probabilities that the individual has acted in one or more of the alleged ways since the appropriate date (s. 103A(3)(b)).

In addition, the court must be ‘satisfied that the defendant having acted in such a way makes it necessary to make a sexual harm prevention order’ for either of the same purposes set out in s. 346(1)(a) and (b) above. A qualifying offender is someone who falls into any of the following categories in s. 103B(2) – someone who has:

  1. Been convicted of an offence listed in schedules 3 (other than at paragraph 60) or 5 to the SOA 2003;
  2. Has been found not guilty of any offence referred to in (i) above by reason of insanity;
  3. Has been found to be under a disability and done the relevant act contained in any offence referred to in (i) above; or
  4. Been cautioned for an offence referred to in (i) above.

Section 103B(3) contains a further set of defining categories for qualifying offenders where the individual has received a relevant conviction, caution or finding in another jurisdiction.

There is a distinction between offences contained in schedules 3 and 5 to the SOA 2003. Schedule 3 contains offences which are by their very nature sexual, whereas schedule 5 contains offences which are not (e.g. murder, manslaughter, and kidnapping). In the case of AB [2019] EWCA Crim 2480 the defendant had pleaded guilty to child abduction, a schedule 5 offence. The Court of Appeal stated that this factor ‘ought to have had the effect of putting into sharper focus’ the issue as to whether the proposed SHPO was necessary to protect the public or any particular members of the public from sexual harm from the offender [para 36].

When an application for a SHPO is made, the procedure to followed is contained in Criminal Procedure Rule 31. If the prosecution propose a SHPO upon conviction, the draft must be served on the court officer and the defendant no less than 2 days before the hearing at which the order may be made.

Terms

Pursuant to s. 343(1A) of the SA 2020, a SHPO may include prohibitions, as well as requirements that the defendant do anything set out in the order. However, the prohibitions and requirements must be targeted and necessary for the same purposes as those set out in s. 346(1) (s. 343(2)). The order must specify the period of time for which each prohibition or requirement is to have effect (s. 347(1)). Pursuant to s. 347(2), the ‘specified period’ is to be a fixed period of at least 5 years or an indefinite period (s. 347(2)).

In Smith [2011] EWCA Crim 1772, the Court of Appeal set out various key principles to be followed by the court, albeit this case arose when the SOPO regime was in effect. The principles can be summarised as follows:

  1. ‘Necessity is … the starting point…it is to the prevention of the commission of such offences that the reach of a SOPO must be tailored; it may not prohibit unusual, or socially disapproved, sexual behaviour unless such is likely to lead to the commission of scheduled offences. Further, there must be a real, not remote, risk of harm at this level occurring in consequence’. The court must address whether the making of an order is necessary, if so whether the terms are nevertheless oppressive, and whether overall the terms are proportionate [paras 6-8];
  2. The defendant may well be subject to other regimes. An order is not necessary if it simply duplicates another regime [para 9];
  3. The order should ‘operate in tandem’ with statutory notification requirements. It is not ordinarily proper to include terms which extend notification requirements beyond the prescribed period. The court stated that: ‘Absent some unusual feature, it would therefore be wrong to add…terms which although couched as prohibitions, amounted in effect to no more than notification requirements, but for a period longer than the law provides for’ [para 17];
  4. ‘A blanket prohibition on computer use or internet access is impermissible’. A prohibition upon possessing a device allowing access to the internet without prior notification to the police may be onerous for defendants and police. One of the formulations most likely to be effective is ‘preservation of readable internet history coupled with submission to inspection on request’. This does not require powers of entry to the police beyond those already in statute. Prohibitions on internet access without filtering software risks uncertainty regarding what is required and difficulty in policing the provision [para 20].
  5. With regards to contact with children, consideration should be given to the risk when specifying whether there should be a prohibition on contact with children under 16 or under 18.  In addition, ‘care must be taken in considering whether prohibitions on contact with children are really necessary’ [paras 21-22]. If it is necessary to include a prohibition on contact with children, there must be a saving to cover incidental contact [24].

In Attorney-General’s Reference (R v NC) [2016] EWCA Crim 1448 (concerning SHPOs rather than SOPOs), the Court of Appeal agreed that the court should consider the necessity of the order, the potential oppressiveness and overall proportionality of terms [9]. However the court also made the following observation: ‘We bear in mind that the position with regard to internet use has developed since the judgment in the case of Smith’.  In R v NC, the court took the view that there was no issue with prohibitions against behaviours such as: use of a device capable of accessing the internet unless it has been installed with approved monitoring software, and ‘interfering with the normal running of any such computer monitoring software’ [paras 4 & 13].

In addition, in Parsons and Morgan [2017] EWCA Crim 2163, the Court of Appeal noted that whilst a blanket ban on internet use could never be ruled out, this type of prohibition would only be appropriate in ‘the most exceptional cases’ [10]. The court addressed ‘Risk Management Monitoring Software’. In so doing, the court observed that:

‘The trigger should be notification by the offender to the Police of his acquisition of a computer or device capable of accessing the internet; the Police cannot be expected to know otherwise. The device should have the capacity to retain and display the history of internet use and the offender should be prohibited from deleting such history. The device should be made available immediately on request for inspection by a Police officer (or employee) and the offender should be required to allow any such person to install risk management software if they so choose. The offender should further be prohibited from interfering with or bypassing the normal running of any such software. For our part, this is a workable and proportionate solution to the questions raised by risk management monitoring software’ [para 19].

The court also tackled the issue of ‘Cloud Storage’. It was observed that prohibitions should be aimed at purposeful installation of remote storage facilities which are installed by offenders without notifying the police, which would not be apparent from the device and which are not intrinsic to operation of the same [para 25]. In relation to ‘Encryption Software’, the court emphasised the need for any prohibition to be targeted rather than a ‘blunt instrument’ [para 28]. Any prohibition ought to be aimed at installing encryption or wiping software which is not intrinsic to operation of the device [28].

In the same case, the court also addressed contact with children. The court declined to interfere with the restriction on contact with female children under 18, given that the SHPO legislation defines a child as a person under the age of 18 (s. 103B(1)).

Breach, Interim Orders and Appeal

If a SHPO is breached without reasonable excuse, this is a criminal offence with a maximum penalty of 5 years’ imprisonment and a fine following conviction on indictment (s. 354 SA 2020). The court has the power under s. 103F(1) of SOA 2003 to impose an interim order where the main application is yet to be determined by the Magistrates’ Court. The test for the court to consider is whether it would be ‘just’ to make the order (s. 103F(3)(b)).

Finally, the imposition of a SHPO can be appealed under s. 353 of the SA 2020. Significantly, the right to appeal extends to a decision of the court not to impose such an order. The appellate court has the power to make any necessary orders to give effect to its determination, and may also impose incidental or consequential orders (s. 353(2) SA 2020).