On 9 October 2013, the Home Office announced there would be ‘tighter restrictions on sex offenders’ in a new Bill which will make its way through Parliament in 2014.
The announcement was headed
‘New measures to give greater powers for the police to protect the vulnerable from sexual predators have been unveiled by the Home Office.’
The new powers will, the Home Office claim, ‘make it easier to restrict the activities of anyone who poses a risk of sexual harm to children and adults.’ As usual with government announcements like these, there is scant detail, however the press release states that ‘the threshold for risk will be lowered to cover any case of sexual harm, not just cases of serious sexual harm.’
Who do they apply to?
Sexual Offences Prevention Orders (Sexual Offences Act 2003 s 104 onwards)
Currently, there are two types of SOPO:
i) The necessity test must be met (it is necessary to make such an order for the purpose of protecting the public, or any particular members of the public from serious sexual harm from the defendant)
These include the major sexual offences, but also offences such as murder, making threats to kill, outraging public decency and endangering the safety of railway passengers. It also includes ABH and assault with intent to resist arrest.
2) A ‘stand-alone’ order, where a police force can apply to the court for an order to be made, where
- The defendant is a qualifying offender
iv. (there are other criteria which for the purposes of this piece are not relevant)
- The necessity test is met (it is necessary to make such an order for the purpose of protecting the public, or any particular members of the public from serious sexual harm from the defendant)
Risk of Sexual Harm Order (Sexual Offences Act 2003 s 123 onwards)
The court has the power to make a stand-alone order where a police force have applied to the court. The individual must be aged 18+ and who has on at least two occasions have done one of the following acts:
(a) engaging in sexual activity involving a child or in the presence of a child;
(b) causing or inciting a child to watch a person engaging in sexual activity or to look at a moving or still image that is sexual;
(c) giving a child anything that relates to sexual activity or contains a reference to such activity;
(d) communicating with a child, where any part of the communication is sexual.
This does not require a conviction.
The press release stated:
‘Sexual Harm Prevention Orders can be applied to anyone convicted or cautioned for a sexual or violent offence, including where offences are committed overseas…and can be made by a court on conviction, or if the police or National Crime Agency (NCA) apply to a magistrates’ court.
Sexual Risk Orders can be applied to any individual who poses a risk of sexual harm in the UK or abroad, even if they have never been convicted. They will replace the Risk of Sexual Harm Order.’
The press release therefore appears to suggest that the criteria will be the same as before.
How long will they last?
A SOPO must be for a minimum of 5 years and can last indefinitely.
A Risk of Sexual Harm Order must not be for a period less than 2 years.
The press release stated:
The new Sexual Harm Prevention Order will last for a minimum of 5 years with no maximum.
The new Sexual Risk Order will last for a minimum of 2 years with no maximum.
No change there then.
SOPOs impose restrictions on people’s behaviour which are designed to protect the public. The restrictions tailor made by the court to meet the needs of the individual case. Below are some terms approved in one recent case.
(i) possessing any photograph in any form of any child under 16 years other than a member of the offender’s family, and then only with the written permission of the child’s parent or guardian (not including the offender),
(ii) possession of any computer, iPhone or mobile telephone without notifying the offender’s monitoring police or probation officer of its acquisition within three days thereof,
(iii) using any computer, etc., capable of accessing the internet that did not have the capacity to retain and display the history of internet use,
(iv) attempting to delete the internet history on any computer, etc., and
(v) denial of access by a police officer to any such history on request.
Risk of Sexual Harm Orders also prohibit individuals from doing certain acts. The restrictions operate in a similar way to SOPOs.
The press release stated:
‘Both powers can place a range of restrictions on individuals depending on the nature of the case, such as limiting their internet use, preventing them from being alone with a child under 16, or preventing travel abroad.
As you can see, the situation appears to be very much preserving the status quo / wasting time and money [delete as appropriate to your view].
So what is *actually* new?
The press release states:
‘The threshold for risk will be lowered to cover any case of sexual harm, not just cases of serious sexual harm.’
This would appear to suggest that the test (listed above in the SOPO section) will be lowered, thereby making it easier to impose such an order.
This raises questions as to why this is necessary, what research has been conducted to support this, and whether there are currently police forces and prosecution counsel applying for these orders and the applications are being refused not on the grounds that the individual does not pose a risk of harm, but that the harm likely to be suffered is not serious enough to warrant making an order.
With little detail, we will have to wait and see. But once again, this strikes me as a PR exercise with little by way of substance.