Sexual Offences Prevention Orders (SOPOs)

Sexual Offences Prevention Orders (SOPOs)

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Note: This order has now been repealed (but part of this will still be relevant). See the SHPO factsheet for details of the order that has replaced the SOPO.

Legislation Sexual Offences Act 2003 s 104-113
Maximum length Indefinite (SOA 2003 s 107(1)(b))
Minimum length 5 years (SOA 2003 s 107(1)(b))
Which court can make an order? Youth Court, Magistrates’ Courts, Crown Courts

The basics

These orders are civil behaviour orders or ‘preventive orders’ imposed upon conviction (‘post-conviction orders’) or upon complaint (‘stand-alone orders’). The former are by far the most common.

The orders specify terms which prohibit the person subject to the order from doing certain things. The orders are targeted at sexual offending and are designed to prevent the commission of acts or offences which would cause serious sexual harm to another person.

SOPOs are from the same family as ASBOs. A SOPO operates in a similar way to an ASBO in that it is preventative in nature, targeted at the behaviour of the person subject to the order. Consequently, many of the principles are the same.

Power to order

Stand-alone orders The power is a discretionary power.

A Chief Officer of Police may by complaint make an application if a) it appears that that the defendant has been convicted of a Schedule 3 offence (list here) or a Schedule 5 offence (list here), or if he has been cautioned for such an offence, and b) the defendant has acted in a way as to give reasonable cause to believe that an order is necessary.

(SOA 2003 s 104(1) and (4))

Post-conviction orders The power is a discretionary power.

Step 1 Is the court dealing with the defendant for a Schedule 3 or 5 offence? (SOA 2003 s 104(2))

Step 2 Is the court satisfied that it is necessary to make such an order for the purposes of protecting the public from serious sexual harm? (SOA 2003 s 104(1)(a) and (b))

NB. The focus of Step 2 must be the risk of further offending. (R v D 2005 EWCA Crim 3660)

Interim orders A court may make an interim order when considering whether to make a stand-alone order. (SOA 2003 s 109)

What is ‘serious harm’?

Death or serious personal injury, whether physical or psychological. (PCC(S)A 2000 s 161(4) and R v Halloren 2004 EWCA Crim 233)

Drafting the order

Serving the draft on the defence to allow for proper scrutiny

A written draft must be properly considered in advance of the sentencing hearing. The normal requirement is that it is served on the court and the defence before the hearing. The Court of Appeal have suggested two clear days as a suitable time period, but in any event the draft is not to be served at the hearing. (R v Smith and Others 2011 EWCA Crim 1772)

The judge and the defence must have proper opportunity to scrutinise the proposed order and discuss its terms. (R v Guest 2011 EWCA Crim 1542)

The terms

Must be prohibitive in nature, as opposed to requiring the defendant to positively do something. (R v Smith 2009 EWCA Crim 785

Must not be oppressive (R v Collard 2004 EWCA Crim 1664)

Must be expressed in simple terms, easily understood by those who are not particularly bright (B v Chief Constable of Avon & Somerset Constabulary 2000 EWHC 559 (Admin)

Must not be vague. The twin tests are necessity and clarity. A subtest of necessity is proportionality. The real risk of unintended breach must be avoided. (R v Smith and Others 2011 EWCA Crim 1772)

A term is not necessary if it duplicates another regime to which the defendant is subject to by virtue of his conviction(s) for sexual offences. The following should be considered: a) notification, b) disqualification from working with children, and c) release on licence. (R v Smith and Others 2011 EWCA Crim 1772)

Where a defendant had shown no sign of progressing from making/possessing indecent images offences to contact offences, an order which prohibited him from having unsupervised contact with a child under 16 and his child while under 16, was unlawful. (R v Lea 2011 EWCA Crim 487)

Variations etc.

Power to vary

The power to vary, renew or discharge a SOPO is contained within SOA 2003 s 108. An order may be varied so as to impose additional requirements. The test remains the same as for imposing a SOPO; is the term necessary for protecting the public from serious sexual harm from the defendant. (SOA 2003 s 108(5))

Discharging an order

An order may not be discharged before the expiration of the 5 year minimum term without the consent of the defendant and the chief officer of police. (SOA 2003 s 108(6)

Where to appeal against a variation

Appeals in relation to variations are to the Criminal Division of the Court of Appeal. (R v Aldridge and Eaton 2012 EWCA Crim 1456)

Appeals

Power to appeal

A defendant may appeal against the making of a SOPO. (SOA 2003 s 110(1))

Where a defendant was prohibited from seeing his son, L, by a term in a SOPO, L did not have the right to apply to vary, renew or discharge the order. (R v D 2005 EWCA Crim 3660)

The test

There are three questions:
a) Is the order necessary to protect the public generally, or any particular member of the public from serious sexual harm?
b) If it is necessary at all, are the particular terms of the order oppressive?
c) Are the terms of the particular order proportionate?

(R v Mortimer 2010 EWCA Crim 1303)

Old, unlawful orders

A defendant appealed a SOPO made in 2006, relying on the decision in R v Smith and Others 2011 EWCA Crim 1772. The Court held that the fresh guidance in Smith did not provide the basis for a successful appeal against a SOPO which was imposed long before that decision. The SOPO was imposed on the relevant legislation and guidance, and should not be varied on appeal because of subsequent changes to them. The Court stated that they are ‘not a review body for every SOPO’. (R v Instone 2012 EWCA Crim 1792 Lord Chief Justice)

Key considerations

Is the order necessary?

Are the terms clear, concise and capable of being understood?

Are the terms proportionate and targeted at the defendant’s behaviour?

Key cases

R v Smith and Others 2011 EWCA Crim 1772
R v Instone 2012 EWCA Crim 1792

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Lyndon is the General Editor of Current Sentencing Practice and the Criminal Appeal Reports (Sentencing)

15 COMMENTS

  1. Having been convicted of ‘making indecent images of children’ and served with a SOPO three months ago I’ve still found that I’m currently saddled with what I consider under these guidelines is a ‘disproportionate’ and ‘oppressive’ order. Hopefully what I write here with be useful to anyone else who finds themselves in court over a similar offence.

    I had what I see now is the misfortune of a bad lawyer/barrister who because I plead guilty they then proceeded to do the barest minimum of work on my case (under legal aid if you plead guilty the solicitor gets a ‘set fee’ so why would they bother doing more work than the fee pays them for?).

    I plead guilty at the first hearing. At the sentencing hearing my solicitor prepared absolutely nothing to oppose the SOPO. He relied on papers I had cut and pasted on the ‘Smith vs Regina’ appeal. I was astonished and appalled that the person representing me seemed to know nothing about them or the ‘Smith vs Regina’ case. As we didn’t get the Probation Report until the day of the sentencing hearing we didn’t have enough time to go through this in detail due to me talking my solicitor through the SOPO. The Probation Report contained error’s, inaccuracies and in my mind was neither ‘balanced’ or ‘impartial’ as per Probation guidelines and painted me in a particularly bad light to the JPP’s (I have since complained to the Probation Service but a fat lot of good this did me regarding my sentence/SOPO).

    I received a suspended prison sentence (more than sentencing guidelines suggest) despite me admitting guilt from the start, answering all police questions (big mistake) and pleading guilty at the earliest opportunity. As for 99% of my case the benefit of hindsight has made me realise that there were numerous areas where my solicitor could have argued against prosecution evidence. But sadly like most people who for this crime its a ‘first offence’ I blindly believed that my solicitor knew what he was doing. My concerns where only raised when just before the sentencing hearing was going to start he asked me to detail a few ‘positive’ areas of my life (eg. voluntary work I was doing, attending SAA meetings etc). As he hurredly wrote this down I realised this is what he must consider ‘preparation’ – a 2 minute conversation which when read out in court certainly didn’t see to have any impact due to its brevity and his halting delivery.

    The original SOPO prepared by the police contained about 9 provisions. In my mind they seem to add whatever they like, the police have got nothing to lose by preparing as many provisions as they see fit, whether they are fair/legal or not (especially for a Magistrates Court where the JPP have to be greatly assisted by a court clerk). It was entirely up to my solicitor to argue against them. I had 4 of the provisions removed due to the evidence supplied by me of the ‘Smith vs Regina’ case’. Of the other 5 left on, 2 of them have made it extremely difficult to get a job. These are:

    i) Accessing the internet, whilst at home, or in any premises in which you temporarily reside or visit, using a computer that does not have installed and maintained monitoring software that is approved and monitored by the police force in the area in which you reside.

    ii) Accessing the internet whilst at work unless your employer is aware of the SOPO.

    Using the ‘Smith vs Regina’ case as well as other previous appeals I decided to appeal against these 2 points (I decided not to appeal the suspended prison sentence).
    I thought I had a good case and again prepared my appeal documents. As well as the ‘Smith vs Regina case my point regarding the ‘software’, was that the vast majority of employers do not use software ‘approved and monitored’ by the police and it was ridiculous to expect any to install it on their entire computer system on my behalf. In fact anywhere I use the internet I was going to have to ask the library, internet cafe, friend with iphone etc ‘excuse me, does your equipment use software approved and monitored by the police?’. My further evidence against this part of the order was that none of my offending behaviour took place outside of my home (in 9 years of having a computer I had downloaded indecent images on approx 7 different occasions at home – hardly the behaviour of a prolific offender).

    So I thought I had a reasonable case and told my solicitors firm that I would like a barrister to represent me at Crown Court for the appeal (having lost faith in my original solicitor/advocate). However on the day itself alarm bells rang when he turned up in shabby torn robes (comical almost!) and had prepared an alternative SOPO which had on it even more provisions than the one the court had imposed (he had been given the wrong SOPO by the solicitors). Again I had a 10 min chat before hand as I realised this was also his ‘preparation’. Unbelievable.

    In court the CPS went through the entire case again but in even more detail than at the magistrates. My barrister chose not to offer any defence to this whatsoever for reasons which are beyond me. Instead he just outlined his reasons for opposing the 2 points on the SOPO I was unhappy with. So effectively the judge heard all the bad stuff about me and nothing positive. My barristers arguments were put forth in a manner I found unclear, incomplete and decidedly weak way. I think the CPS felt sorry for me as it was them rather than my barrister, who added at the end that I was of previous ‘good character’. The judge said he had approved numerous SOPO’s with ‘software’ clause and had never heard of any problems (what about the ‘Smith vs Regina’ case?!). Concluding for me that I had been represented by someone again ill prepared and incoherent.

    So I effectively lost my appeal. Now what? I’ve no idea, I’ve heard varying bits of info that i can only appeal again but for a hearing under ‘case study’ or ‘judicial review’ neither of which seem appropriate or I fully understand. No one seems to want to represent me under ‘legal aid’ (some have said that I’ve used up my legal aid – I’m on ESA). So I’m stuck with those 2 provisions on my SOPO which even my Probation Officer and Police Public Protection Officer want changed as they can see they effectively stop me working (the ‘software’ part anyway).

    Yes I am guilty but I can’t see that the justice was ‘fair’. But try finding support for someone now deemed a ‘sex offender’. Many will no doubt be annoyed that I’ve even got the audacity to complain about the points raised. But how do I become a productive member of society if I cannot work?

    For those who get charged with a similar offence, do you homework on SOPO’s and the ‘Smith vs Regina’ case. Question your solicitor about it, if they seem vague it may mean they lack the relevant experience. Call round to different firms, if the person you are speaking to knows about the provisions and how to argue against them they may be better suited. Also make sure they properly prepare your case (not a 10 minute chat in court just before the case starts). Go through the CPS papers yourself and create arguments/explanations. Personally, if I had the chance again, I wouldn’t answer all the police questions I’d just reply to the facts eg. yes its my computer, yes I download them etc.

    If this helps someone then its done its job.

    • Dear Patrick,
      Should you need any assistance regards a complaint into probation service make sure you take it to an appeal stage where an independent out of area department will investigate the case.
      Once this is done you’re likely to find a more neutral outlook on your case, in my example West Mercia Probation were investigated by Warwickshire resulting in 3 out of 5 parts being partly upheld against all 5 being dismissed by West Mercia Probation.
      Sadly you will find that both the Probation Trust’s and Police Forces are all bent and cover up for one another, fact not fiction.
      They both investigate their own just look at “Plebgate inquiry”
      Regards
      Mark

      • Dear Patrick,
        Regards part 1) of your SOPO
        i) Accessing the internet, whilst at home, or in any premises in which you temporarily reside or visit, using a computer that does not have installed and maintained monitoring software that is approved and monitored by the police force in the area in which you reside.

        This you should challenge on the grounds of being ambiguous which it is for sure.
        Mark

  2. I was convicted in 2006 aged 15 after indecent assault of my half sister (8) when I was 14 . I received a 3 year supervision order and then re-offended having underage sex , I was 17 she was 14.

    I received a 15 month sentence with extended licence and an indeterminate SOPO.

    I’m now 25, am at university in a long term relationship with my offending behavior well and truly behind me.

    Would I have grounds to apply for a discharge of my SOPO as it has outlived my registration requirements and has meant they are also extended as a result which is impeding on my life.

    Warm regards

    Chris

    • I’m afraid we cannot give legal advice. You should go and see a solicitor who will be able to help you.

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