You get a load of nonsense popping up on twitter. And you get a lot of nonsense reporting in the media. So when you see something like :
— Evening Standard (@standardnews) January 22, 2016
You guess that it must be a mixture of the two. Surely, the idea that someone has to notify the police before having sex is ludicrous?
So is this wrong?
Incredibly, it seems not.
According to the BBC, Mr X (his name has not been released) was acquitted of rape in 2015. That wasn’t the end of it as the Police went to the Magistrates’ Court to get a Sexual Risk Order – SRO (see our fact sheet on SHPO for details of how these operate)
As well as restrictions on his internet and mobile phone use, there was also the following term :
“You must disclose the details of any female including her name, address and date of birth. You must do this at least 24 hours prior to any sexual activity taking place.”
It seems that it must be worded slightly differently – after ‘any female’ we assume it says something along the lines of “you intend to have sexual activity with”.
This is an interim order, and will be considered at a full hearing in May. Even so, it is still a criminal offence to breach this, punishable with up to 5 years in prison.
Is that lawful?
There are a few objections. Firstly, a SRO must be prohibitory in nature. Although it could be said that this is prohibitory (don’t have sex, unless …) this would appear to be a mandatory requirement.
But that’s to get technical. The order struck most people on twitter as laughable and unenforceable. And it’s hard to disagree.
An order can only be made if it is necessary to protect “the public or any particular members of the public from sexual harm“. It is hard to see how this can be necessary – why 24 hours and not 12? Or 2? Or 1?
Also, how will this prevent harm? If Mr X were to commit a sexual offence, it may make it easier to catch him (although it’s hard to see how), but it is not immediately apparent how this protects anyone.
In any event, it is unlikely that this would be compatible with Art 8 ECHR. This is clearly an interference with his private life (and potentially a very significant one), and does not appear to be in any way proportionate.
Further, a SRO is supposed to be practical and effective. This fails to recognise that people don’t always plan their sexual activities 24 hours in advance.
Whether or not you engage in sexual activity in the future, is not something that you can be certain about now. This must mean that there is an obligation to notify the police now if he intends to have sex tomorrow. You can’t police someone’s intentions, or their hopes – Mr X may have designs on many people – there is no comeback on him if he tells the police a list of names of people he’d like to chat up. The North Yorkshire police could be very busy …
And that is before you consider that Mr X was not convicted of the allegation of rape that apparently triggered this application (it is not clear if Mr X has any other convictions).
There may, of course, by more to it than that. But whatever else there is, it is difficult to see that there can be any set of facts that could justify a prohibition.
Hopefully more details will be available soon, before North Yorkshire Police look like a laughing stock.