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Ian Graham

SEXUAL HARM PREVENTION ORDERS – Sexual Offences Act 2003, as amended by the Anti-Social Behaviour, Crime and Policing Act 2014

Introduction

The practical application of Sexual Offence Prevention Orders (SOPO) has evolved over recent years, and at the beginning of March 2015 this type of Order underwent further change as the amendments contained in the Anti-Social Behaviour, Crime and Policing Act 2014 came into force.  This type of order is now called a Sexual Harm Prevention Order (SHPO), and it is argued that despite the new amendments, recent case law still provides clear guidelines for those drafting or challenging proposed terms.  However, it is clear that technology and the internet will continue to present challenges to the practical application of some terms.  Further, older orders which are still in force may now be incompatible with leading case law, and there may be grounds for an application to vary or discharge a SOPO.

The New Law Relating to SOPOs

The Anti-Social Behaviour, Crime and Policing Act 2014 contains saving and transitional provisions at S114 and these will need to be carefully considered at the outset when dealing with these orders.  The new amendments widen the eligibility of the orders, and lowers the test from ‘serious sexual harm’ to ‘sexual harm in s103A’.

The effect of a SOPO is now set out in s103C, and it is important to note that the court still has discretion at the time of making the SOPO to set a fixed period of time (not less than 5 years) or make the SHPO until further order.  The amendment now also allows for greater flexibility of different time periods for different terms [1].  The ability of a party [2] to vary, renew or discharge a SOPO is now contained in s103E and s103H.  Whilst these sections stipulate that an order cannot be discharged within 5 years [3], as with the old legislation, no discharge ‘criteria’ are listed.  This still leaves the question of what grounds a court may consider in an application to discharge this type of Sexual Order.

There is still useful guidance in R v Smith [2011] EWCA Crim 1772 concerning the making of a Sexual Order, and it is argued that this will still apply to the new SHPO.  The first point to note from the Court of Appeal case of R v Smith is that the Court making a Sexual Order should have regard to the sex offender notification requirements pursuant to s80-102 of the Sexual Offences Act 2003.  Further, no Order is needed if it merely duplicates such regimes as registration or licence conditions.  It is submitted that the questions a court should ask itself when making a SOPO and deciding the terms will largely remain as set out in R v Mortimer [2010] EWCA Crim 1303 [4].  These are;

(a)          If some order is necessary are the terms proposed nevertheless oppressive?

(b)          Overall are the terms appropriate?

Challenging, Varying or Discharging a SOPO

The Sexual Offences Act 2003 allows for Appeal of a SOPO when it is made, and appeal points might arise out of SOPO terms duplicating notification and licence requirements, or with respect to the length of the SOPO compared to the notification period.  Further Appeal points concern SOPO terms if they do not meet the criteria as set out in the Court of Appeal case of R v Mortimer, especially if those terms concern the oppressive use of the internet.

As already highlighted above, there are no listed criteria for the court to consider in an application to discharge or to vary a SOPO.  However, a recent Appeal case dealt with an application to discharge a SOPO in Sadler v Worcestershire Magistrates Court [2014] EWHC 1715.  Lord Justice Elias appears to have picked up on the point of ‘change of circumstance’ in R v Hoath concerning variation of a SOPO, and applied it to an application to discharge a SOPO; “when the application is to discharge, it seems to me that a change of circumstance is a necessary requirement, otherwise the application is no more than an appeal against the original order.”[5]

This most recent judgment seems to place the onus upon the applicant to identify the change of circumstance that would satisfy the court “that it was no longer necessary to impose any form of SOPO in order to achieve the objective of protecting the public in the future”.[6]  It is respectfully submitted that the court may give consideration to variation of prohibitions if they affect third parties such as other family members or the course of the Applicant’s business.[7]

Challenges to Sexual Orders often also concern the use of the internet, and increasingly monitoring software is being considered.  However this presents potential problems to those drafting SOPO’s due to potential Human Rights infringements, and engagement of the Regulation of Investigatory Powers Act 2000.  These issues may present points of Appeal for future SOPOs, or application points for variation or discharge of existing SOPOs.

Finally, is the ‘mere’ passage of time without further offending enough of ‘change of circumstance’, or is the lack of reoffending due to the efficacy of the notification requirement and Sexual Order?  Interesting questions for both Applicants and Respondents, and no doubt each of these cases will surely turn on their own facts.

Ian Graham
Colleton Chambers

[1] Sexual Offences Act 2003 s103C(3)(b)
[2] Those parties that can vary, renew or discharge a SOPO are listed in Sexual Offences Act 2003 s103E(1)
[3] Sexual Offences Act 2003 s103C
[4] R v Smith [2011] EWCA Crim 1772 at para 8.
[5] Sadler v Worcestershire Magistrates Court [2014] EWHC 1715 at para 19
[6] Sadler v Worcestershire Magistrates Court [2014] EWHC 1715 at para 19
[7] R v Hoath [2011] EWCA Crim 274 at para 19


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