Have the police really banned someone from having sex without telling them?

    Have the police really banned someone from having sex without telling them?

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    Introduction

    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 :

    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?

    Surely not.

    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).

     

    Conclusion

    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.

     

     

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    Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

    13 COMMENTS

    1. Thank you for highlighting this case. Hopefully it can be challenged and the ridiculous situation revealed for what it is.

    2. Basically they think he’s guilty even though he was acquitted (on re-trial apparently so there must have been an original conviction that was overturned on appeal). The order is presumably so that they can contact anyone he tells them he plans to sleep with and check that they have consented to it. I think the idea is that any woman he sleeps with can, if she wants, get him jailed just by disclosing that they had sex without prior notification. Maybe they think this will make him careful to obtain consent. It does seem outrageously draconian and breaches both human rights and presumption of innocence – but don’t we already have the same principles being violated by control orders? Police can apply for restrictions on personal freedom just because they suspect someone of being a terrorist even if they don’t have enough evidence to charge let alone convict. This is the same thing but applied to sex.

      Personally, if I were this guy, I would do as you suggest and call them every five minutes with the name of a different woman I planned to try it on with. Presumably they’d be obliged to contact each and every woman I named. Perhaps that would make them less eager to apply for these orders.

    3. Ah, thanks Robert. The article I read didn’t give the outcome of the first trial. That makes it even worse – it’s not even as if he was convicted and then the verdict quashed on some technicality. But then, like I said, we’ve already gone down this road with control orders so it was only a matter of time before the approach was expanded to other crimes…

    4. “…laughable and unenforceable” at least it’s trying to prevent a determined sexual predator and as the alternative is we let this sexual predator loose so he can rape and sexually assault other women and no doubt walk again. How would you define that I wonder UK CLB – laughable and hilarious. At least for once someone is trying to centre the victims of rape rather than the perpetrators.

    5. Slight issue with the headline – strictly, the court has issued the SRO (and therefore “banned someone etc.”), not the police.

    6. But, LES, on what basis do you believe this man is a “determined sexual predator”? He was acquitted. True, that doesn’t necessarily mean he’s innocent – but are you really comfortable assuming anyone charged with rape is guilty even if a jury finds otherwise? We have a principle of innocent until proven guilty for a reason.

      • Caroline, I’m comfortable that acquittal does not mean he didn’t do it rather that it cannot be proved beyond all reasonable doubt. Innocent until proven guilty may apply to the courts and in the eyes of the law however neither I nor anyone else, has to agree with it if we don’t wish to. I’m one of those. If he wasn’t a danger why are they going to such lengths to protect women from him? With an allegation of rape, to quote an unknown source, it’s not rocket science that the person most likely to lie about it is the rapist. I’m happy to assume that where there is smoke there is fire.

        • So would you be happy for this restriction to be placed on any man or woman accused of rape then? The logical extension of this would be that anyone against whom a complaint was brought would be forced to live under such restrictions indefinitely, unless they could absolutely prove their innocence. You’d be comfortable with that?

          • At the moment rapists are walking around scot free and the legal system works in their favour anything which starts to prioritise victims over perpetrators deserves consideration. Would I be comfortable with such a restriction on a man accused of rape. Yes entirely so. All it’s asking is that he notifies the police well if he’s not got anything wrong planned he could probably even text them the details. (As rape is carried out by people with penises and women don’t have penises the same does not apply) however if she happens to be a prolific sex offender of some sort then why not.

            I don’t agree that your logical extension is logical. Rape and sexual assault are unique in my opinion it’s unique in it’s motivation and execution therefore I don’t believe restrictions should be placed on other crimes or complaints except for the the paedos and banning from areas where children are that’s fine with me.

            • Fair enough. That’s not a society I’d want to live in but I guess we all have different feelings about what level of police intrusion are acceptable. Women may lack the necessary equipment to be technically liable for rape but they can be (and often are) guilty of sexual assault, including “assault by penetration” which is comparable to rape. I have a feeling you’d be less relaxed about it if someone accused you of sexual assault and you were summarily placed under indefinite notification requirements pending your ability to prove your innocence.

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