Rape and Sexual Offences - Chapter 15: Sexual Harm Prevention Orders (SHPOs)
- Key Points - SHPO's
- Prosecutor making an application under section 103A(2)(a)(ii) and (iii) SOA 2003 and s345 SA 2020
- Sexual Harm
- Jurisdiction
- Prohibitions
- Positive obligations
- Service
- Breach and sentencing
- The Prosecutor's role
- Variation of a SHPO
- Appeal against variation or refusal to vary a SHPO
- The relationship between SHPOs and the Sex Offender Notification Rules
- Additional Useful Case Law
- Sexual Risk Orders
Key points - SHPO's
SHPOs are sought upon conviction under section 345 of the Sentencing Act 2020. They are sought where a defendant is found not guilty by reason of insanity, or they are under a disability and are found to have done the act alleged against them, under section 103 Sexual Offences Act 2003. The Sentencing Act 2020 repealed the provision relating to orders on conviction but left the other powers to make an SHPO in place. The test for making an SHPO is set out in the respective statutes. In addition the police have a power to seek an SHPO without recourse to the CPS and by way of complaint to a magistrates’ court.
Prosecutor making an application under section 103A(2)(a)(ii) and (iii) SOA 2003 and s345 SA 2020
SHPOs are available in both the Magistrates' Court and the Crown Court.
Schedule 3 Sexual Offences Act 2003 deals with most of the substantive sexual offences (for example rape under both SOA 1956 and SOA 2003 as well as indecent images of children). Prosecutors should consult the schedule when considering applying for a SHPO as some offences have specific conditions placed on when a SHPO can be ordered.
Schedule 5 contains a range of other offences, such as murder and GBH as well as theft, child cruelty and harassment.
A court can make an interim SHPO before the main application has been determined. Where a court makes a SHPO in relation to a person already subject to such an order, the earlier order or interim order ceases to have effect.
Sexual harm
Sexual harm is defined in section 103B of the SOA as below:
“sexual harm from a person means physical or psychological harm caused by the person committing one or more offences listed in Schedule 3”
The considerations outlined by the Sentencing Council in relation to SHPOs are as follows:
- Would an order minimise the risk of harm to the public or to any particular members of the public?
- Is it proportionate?
- Can it be policed effectively?
Jurisdiction
In the context of harm which has taken place outside the United Kingdom, this can be considered for the purposes of obtaining a SHPO if the person has done anything which would constitute an offence listed in Schedule 3, had it been done in any part of the United Kingdom.
Prohibitions
The only prohibitions which can be imposed by a SHPO are those which are necessary for the purpose of protecting the public from sexual harm from the defendant. These can be wide ranging. An order may, for example, prohibit someone from undertaking certain forms of employment. It may also prohibit the offender from engaging in particular activities on the internet. SHPOs may be used to limit and manage internet use by an offender, where it is considered proportionate and necessary to do so. The order may include both negative prohibitions and positive obligations (see below).
Where contact with children is prohibited, it is essential to include an exemption for incidental contact such as is inherent in everyday life. In relation to offences involving indecent images the Court of Appeal has repeatedly said (including in R v Aldridge and R v Eaton [2012] EWCA Crim 1456) that conditions prohibiting contact with children should be made only on the basis of evidence to suggest progression by the defendant to contact offences.
In R v Smith and Others [2011] EWCA Crim 1772 the Court emphasised the need for the terms of an order to be specific to the exact requirements of the case. This was a case where SOPOs were being considered rather than SHPOs, but the principles are still applicable. The Court quashed a number of blanket prohibitions which they replaced with more focussed and balanced conditions, particularly in relation to computer use or internet access. The Court summed up its preferred approach by saying, "In the early days, terms completely barring the defendant from possession of a computer or access to the internet were not uncommon. Latterly terms of that kind have been quashed as unnecessary and disproportionate".
In R v Parsons and another [2017] EWCA Crim 2163 the Court of Appeal emphasised the need for the terms of any SHPO to be effective, clear, realistic, proportionate, and tailored to the facts. The Court confirmed the previous approach to blanket bans on internet access, stating that such a prohibition would not be appropriate in anything other than the most exceptional cases.
The Court in Parsons also addressed developments in technology, stating that changes in everyday living called for an adapted and targeted approach, particularly in relation to risk management monitoring software, cloud storage and encryption software. Prohibitions have to be aimed at the deliberate installation of software rather than that which is intrinsic to the operation of a device.
Below are some suggested SHPO prohibitions. This list is non-exhaustive and the appropriate prohibitions to be requested will always depend on the nature of the case.
The defendant is prohibited from:
- Using any device capable of accessing the internet unless:
- he has notified the police VISOR team within 3 days of the acquisition of any such device;
- it has the capacity to retain and display the history of internet use, and he does not delete such history;
- he makes the device available on request for inspection by a police officer, or police staff employee, and he allows such person to install risk management monitoring software if they so choose.
This prohibition shall not apply to a computer at his place of work, Job Centre Plus, Public Library, educational establishment or other such place, provided that in relation to his place of work, within 3 days of him commencing use of such a computer, he notifies the police VISOR team of this use.
- Interfering with or bypassing the normal running of any such computer monitoring software.
- Using or activating any function of any software which prevents a computer or device from retaining and/or displaying the history of internet use, for example using 'incognito' mode or private browsing.
- Using any 'cloud' or similar remote storage media capable of storing digital images (other than that which is intrinsic to the operation of the device) unless, within 3 days of the creation of an account for such storage, he notifies the police of that activity and provides access to such storage on request for inspection by a police officer or police staff employee.
- Possessing any device capable of storing digital images i.e. a USB stick or external hard drive, unless he makes it available on request for inspection by a police officer or police staff employee.
- Installing any encryption or wiping software other than that which is intrinsic to the operation of the device.
- Having any contact of any kind with a person he knows or believes to be under the age of 18, whether directly or indirectly via social media or in any other way, other than:
- inadvertent contact which is not reasonably avoidable in the course of lawful daily life, or
- with the supervision of an adult approved in advance by social services, who has knowledge of his convictions.
Section 103C of the SOA 2003 outlines that the order may have effect for a fixed period of at least five years, or until further order. The court may specify that some of the prohibitions have effect until further order and some have effect for a fixed period. Different periods for different prohibitions may therefore exist within the same order.
Section 103D outlines that a prohibition on foreign travel contained in a SHPO must be for a fixed period of not more than five years. The prohibition can be extended for a further period but must be for no more than five years each time.
Positive obligations
The addition of positive obligations to SHPOs and SROs was introduced by Part 10, Chapter 3 of the Police, Crime, Sentencing and Courts Act 2022. This amended the 2003 Sexual Offences Act to enable the courts to impose positive obligations where appropriate.
The amendments include:
- The ability to require an individual to engage in a behaviour change programme, alcohol or drug treatment programme, or to take a polygraph test.
- The ability to require an individual to wear an electronic monitoring tag (to monitor their compliance with other conditions in the order).
- The provision that the court should apply the civil standard of proof ('balance of probabilities') when determining whether the individual has done the act in question.
- The provision that Scottish SHPOs and SROs are fully enforceable in England and Wales and that orders made in one jurisdiction (either England and Wales, Scotland or Northern Ireland) can be varied, renewed or discharged in another jurisdiction.
The conferring of a power on the Secretary of State to prepare (or direct a relevant person, such as the National Crime Agency, to prepare) a list of countries deemed to be at "high risk" of child sexual abuse by UK nationals/residents. This list is to be considered by applicants and the courts when applying for, or making, a SHPO or SRO, for the purpose of protecting children outside the UK from the risk of sexual harm.
Service
A written draft order should be served not less than two business days in advance of the hearing at which the order may be made – rule 31.3(1) and (5) of the Criminal Procedure Rules 2020. The Court has emphasised the responsibility of prosecution counsel in complying with this – R v Jackson [2012] EWCA Crim 2602.
Breach and sentencing
Breach of a Sexual Harm Prevention Order is triable either way. The maximum penalty for conviction on indictment is imprisonment for a term not exceeding five years.
Breach of a sexual harm prevention order made on conviction is an offence under section 354 of the Sentencing Act 2020, not section 103 Sexual Offences Act 2003.
The previous legislation is only appropriate for breaches which occurred before 1 December 2020.
However, S.103A(2)(a)(ii) and (iii) were not repealed by the Sentencing Act 2020 and as described previously, these relate to SHPOs imposed after fact finding exercises where a defendant was found not guilty by reason of insanity or was found to be under a disability but had done the act alleged.
The Court in R v Beeden [2013] EWCA Crim 63 held that the defendant had to comply with the terms of the order until such time as it was varied. It cannot be mitigation in breach proceedings to argue that the term that was breached was later removed.
The Prosecutors role
The prosecutor should ask the police to provide a draft SHPO which should then be checked and amended as necessary by the reviewing lawyer. In cases when a defendant is on bail, the prosecutor should request this draft order during the pre-charge review. In cases when a defendant is in custody and charged under the threshold test, the draft should be requested as part of the first review.
The prosecutor should be in a position to make an application for relevant ancillary orders and to assist the court when sentencing. In particular, it is important that the prosecutor has regard to the protection of a particular victim and/or the wider community.
If the court makes a SHPO in respect of an offender who is already subject to such an order, the earlier order ceases to have effect (Section 103C(6)). Accordingly, any terms from a pre-existing SHPO that are still relevant and appropriate will have to be specifically included in an application for a new order or they will no longer apply.
Although there is no statutory requirement for a formal application by the prosecution when the court deals with a defendant, the Court of Appeal has emphasised the need to prepare the draft SHPO and serve it on the court and defence in advance of the hearing.
Prosecutors must, both at the charging stage and when preparing the PTPH form, clearly highlight that an offence may attract a SHPO in the event of conviction. They should identify that the offence is one to which either Schedule 3 or Schedule 5 applies.
Advocates must also draw to the court’s attention the power to make a SHPO on conviction for an offence to which Schedule 3 or Schedule 5 applies. Thereafter, they should assist the court, if required, to determine whether the offender presents a risk from which the public should be protected and should submit whether a SHPO would be appropriate. This submission may include highlighting information about the defendant’s previous convictions or cautions and/or drawing attention to particular features of the case.
Such considerations may form part of the wider assessment of "dangerousness" under the dangerous offender provisions of the Criminal Justice Act 2003. See Sentencing Dangerous Offenders, elsewhere in the Legal Guidance.
The advocate should also assist the court with suggested terms for the SHPO and should have prepared a draft SHPO in advance of the sentencing hearing, following consultation with the police.
In R v Smith and others, the Court of Appeal considered whether the use of a SOPO was appropriate in conjunction with an indeterminate sentence and concluded: “the usual rule ought to be that an indeterminate sentence needs no SOPO”. The rationale of the Court was that it was wrong in principle to try and assess the risk at the sentencing stage as it would in all likelihood be different from any future risk which might exist at the time of release.
When considering a determinate or extended term, the Court of Appeal acknowledged that, “a SOPO may plainly be necessary”, albeit that the framing of suitable prohibitions may, in the case of a very long sentence, be more meaningful when the offender is about to be released rather than when they are just beginning their sentence.
These principles also apply in relation to SHPOs.
It is the responsibility of the CPS to prosecute the offence of Breach of a Sexual Harm Prevention Order and Breach of an Interim SHPO under section 103I of the Sexual Offences Act 2003 or section 354 of the Sentencing Act 2020, irrespective of how the order was first made. Only breaches which occurred before 1 December 2020 should be prosecuted under the old legislation. Prosecutions for breaches should be alive to the potential for discrepancies between the terms of the order as recorded by the court office and the actual order made by the judge in court. To avoid this, prosecutors should upload a copy of the draft order before the hearing. This can then be adopted or amended by the court as appropriate and so reduces the risk of error (R v Pelletier [2012] EWCA Crim 1060).
Variation of a SHPO
Only the police and the defendant may apply to vary a SHPO (section 103E, s350 Sentencing Act 2020). The CPS is not authorised to make an application for a variation. Where the police require legal representation, this should be through their own in-house legal team.
In R v Terence Hoath [2011] EWCA Crim 274 the Court of Appeal made it clear that powers to vary a SOPO should be exercised only when there was a change of circumstances. Where the defendant objects in principle to the terms of a SOPO imposed by the Crown Court the correct approach is an appeal, as opposed to a variation.
The Court of Appeal in Hoath suggested that the CPS might correctly be involved in a variation where it occurred very shortly after the making of the order and involved “particular and unanticipated difficulties arising from the form and/or wording of the order”. The Court continued: “those difficulties should be identified promptly (in writing and with particularity) and sent to the prosecuting authority so as to see whether the matter can be put before the Crown Court on an agreed basis and in any event to narrow the area of dispute”. This would in reality only happen rarely and in very specific circumstances.
Appeal against variation or refusal to vary a SHPO
Appeals are governed by s.353 Sentencing Act 2020.
The relationship between SHPOs and the Sex Offender Notification Rules
Unlike a SHPO which must be ordered by a court, the sex offender notification rules (sections 80 – 102 SOA 2003) follow automatically upon conviction for most sexual offences. The term during which the notification requirements apply depends upon the length and nature of the sentence imposed and range from 2 years in the case of a caution to indefinitely if the sentence is imprisonment for 30 months or more.
In R v Smith and others, the Court of Appeal considered the relationship between SOPOs and the notification provisions and agreed that “a SOPO must operate in tandem with the statutory notification requirements” and “not conflict with any of those requirements”. They decried any use of a SOPO to extend notification periods beyond the time prescribed by law as “not a proper use of … power”. The Court of Appeal considered whether any SOPO should be for the same period as any notification and decided this was not necessary. The Court could “see no objection to the …provisions of a SOPO extending beyond the notification requirements” and added “it may also be possible that a SOPO for less than an indefinite period might be found to be the right order in a case where the notification requirements endure for ever”.
The same considerations would apply when considering SHPOs.
Link s.352 Sentencing Act 2020
Additional Useful Case Law
The Court has no power to order a SHPO for breach of a SOPO – R v Harmer [2017] EWCA Crim 192.
Sexual Risk Orders
Section 122A Sexual Offences Act (SOA) 2003 deals with Sexual Risk Orders.
Sexual Risk Orders can be applied for by a Chief Officer of Police or the Director General of the National Crime Agency by way of complaint to a Magistrates’ Court. These civil orders are applied for in relation to individuals who have not been convicted or cautioned for an offence but who nevertheless are thought to pose a risk of harm to the public in the UK and/or children/vulnerable adults abroad.
Sexual Risk Orders can impose various restrictions on behaviour and also positive obligations, like SHPOs.
It is helpful for prosecutors to be aware of these orders in situations where, for example, they are giving early advice to the police pending a charging decision or where a charging decision has been made and there is not sufficient evidence for a realistic prospect of conviction, but the police still have concerns about that individual. Sexual Risk Orders can be considered by the police and applied for if they believe that the following test is met:
On the balance of probabilities, the defendant has done an act of a sexual nature, as a result of which it is necessary for a sexual risk order to be made, to protect the public or any particular members of the public from harm from the defendant, or to protect children or vulnerable adults outside the United Kingdom from harm from the defendant. The children and vulnerable adults in question can be particular individuals or a general group.
Such an order has effect for a fixed period of not less than two years or until further order.
An Interim Sexual Risk Order can be applied for by the police when there is an urgent need to manage an individual’s behaviour whilst a full Sexual Risk Order application is being considered. The police would need to believe that the person poses an imminent risk of sexual harm and the court would impose an Interim Sexual Risk Order if it was just to do so, under s126 Sexual Offences Act 20023.
Breach of a Sexual Risk Order is a criminal offence that is triable either way and prosecuted by the CPS under section 122H Sexual Offences Act 2003.
The maximum penalty for conviction on indictment is imprisonment for a term not exceeding five years.