Rape and Sexual Offences - Chapter 15: Sexual Harm Prevention Orders (SHPOs)

• Key Points
• Prosecutor making an application under section 103A(2) SOA 2003
• Sexual Harm Test
• Prohibitions
• 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

From 8 March 2015, Sexual Offences Prevention Orders (SOPO) were replaced by Sexual Harm Prevention Orders (SHPO). Section 103 of the Sexual Offences Act (SOA) 2003 deals with SHPOs.

There are two ways a Court can order a SHPO. Firstly, the Court can make a SHPO when a defendant is before the Court in relation to an offence in Schedule 3 or 5 of the SOA 2003. This is dealt with in section 103A (2) SOA 2003 and is the section under which a CPS prosecutor will apply. Secondly, the Court can also make a Sexual Harm Prevention Order where a Chief Officer of Police or the Director General of the National Crime Agency applies by complaint to a Magistrates’ Court. The application is made under s. 103A (3) and (4) SOA 2003. It is not the role of a CPS prosecutor to apply under this section.

Prosecutor making an application under section 103A(2) SOA 2003

A court dealing with an offender for one of the offences listed in Schedule 3 or Schedule 5 of the Sexual Offences Act 2003 may make a SHPO if it is satisfied that it is necessary to make such an order for the purposes of protecting the public (or any particular members of the public) from sexual harm from the defendant: section 103A(2) Sexual Offences Act 2003.

A court which finds that the offender is not guilty of an offence in either Schedule 3 or Schedule 5 by reason of insanity, or that he is under a disability and has done the act charged against him in respect of an offence may make a SHPO. It has to be satisfied that it is necessary to make such an order for the purposes of protecting the public (or any particular members of the public) from sexual harm from the defendant: section 103(A) Sexual Offences Act 2003.

SHPOs are available in both the magistrates' courts and the Crown Court.

Schedule 3 Sexual Offences Act 2003 deals with most of the substantive sexual offences (for example rape both under SOA 1956 and SOA 2003 as well as indecent images of children). Prosecutors should consult the schedule when considering a SHPO as some offences have specific conditions placed on when a SHPO can be ordered.

Schedule 5 contains a range of generally violent offences, such as murder and GBH as well as theft, child cruelty and harassment.

An SHPO can be ordered for offenders whose convictions pre-date the commencement of the SOA 2003.

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 test

The implementation of SHPOs lowers the test from ‘serious sexual harm’ to ‘sexual harm’. The authorities cited in relation to SOPOs will therefore only be persuasive.

Sexual Harm is defined in section 103B of the SOA as

“sexual harm from a person means physical or psychological harm caused by the person committing one or more offences listed in Schedule 3 or (in the context of harm outside the United Kingdom) by the person doing, outside the United Kingdom, anything which would constitute an offence listed in Schedule 3 if done in any part of the United Kingdom”

The Sentencing Council outlines that the court may want to consider:

1. Would an order minimise the risk of harm to the public or to any particular members of the public?
2. Is it proportionate?
3. Can it be policed effectively?

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, however, 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.

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 a case considering SOPOs rather than SHPOs but the general principles apply, the Court emphasised the need for the terms of an order to be specific to the exact requirements of the case. The Court quashed a number of existing blanket prohibitions which they replaced with more focused and balanced conditions, particularly in relation to computer use or internet access. The Court summed up its preferred approach 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 other than that which is intrinsic to the operation of a device.

Below are some suggestive SHPO prohibitions. This list is non-exhaustive and the prohibitions ordered will depend on the nature of the case before the Court.

The Defendant is prohibited from:

1. 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.

2. Interfering with or bypassing the normal running of any such computer monitoring software
3. Using or activation 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
4. 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
5. 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;
6. Installing any encryption or wiping software on any device other than that which is intrinsic to the operation of the device.
7. Having any contact of any kind with any person he knows or believes to be under the age of 18, whether directly or indirectly via social media or skype or in any other way, other than:

• such as is inadvertent and 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 for a fixed period or different periods for different prohibitions.

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 included under 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 impost 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 conditions in the order).
• Providing that the court should apply the lower civil standard of proof (‘balance of probabilities’) when determining whether the individual the application is made in respect of has done the act in question.
• Ensuring 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.
• Conferring a power on the Secretary of State to prepare (or direct a relevant person, such as the National Crime Agency (NCA), to prepare) a list of countries deemed to be at “high risk” of CSA by UK nationals/residents, 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 from the respondent.

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 this regard – 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.

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 was not mitigation in breach proceedings to argue that the term that was breached was later removed.

The Prosecutor’s 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 during the pre-charge review. In cases when a defendant is in custody and charged on a threshold test basis, this 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 generally when sentencing. In particular, it is important that the prosecutor has regard to the protection of a particular victim or of 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 included in the application for the 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, where appropriate, 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 that requires the public to be protected and to suggest that an order is required. This may be by way of information about previous convictions or cautions, or by drawing attention to particular features of the case under consideration.

Equally, 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 prohibitions for the SHPO, and have prepared (in conjunction with the police) a draft SHPO in advance of the sentencing hearing.

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 being 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 that presenting itself on any eventual 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 at the point that the offender is about to be released rather than when they are just beginning their sentence.

These principles will also apply in relation to SHPOs.

It is the responsibility of the CPS to prosecute the offence of Breach of a Sexual Offences Prevention Order, Breach of a Sexual Harm Prevention Order and Breaches of the respective interim orders under section 103I of the Sexual Offences Act 2003, irrespective of how the order was first made. Breach proceedings can fail due to discrepancies in 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 deliver a written document setting out in draft the proposed order. This can then be adopted or amended by the court as appropriate and so reduce the risk of error in translation (R v Pelletier [2012] EWCA Crim 1060)

Variation of a SHPO

Persons who may apply to vary a SHPO are restricted to the police and the defendant (section 103E). The CPS is not authorised to make an application for a variation. Where the police require representation this should be through the Force solicitor or equivalent.

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. This is a useful point as there has been a tendency for defendants to seek to fundamentally change the terms by way of a variation rather than embarking on an appeal.

The Court of Appeal in Hoath suggested that the CPS might correctly be involved in a variation following close on the heels of the making of the SOPO and involving “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”.

Appeal against variation or refusal to vary a SHPO

Following the decision in Hoath, there was disagreement with the Court of Appeal’s decision, including from Archbold, to the affect that any appeal against a variation of a SOPO or a refusal to vary, should be to the Civil (rather than the Criminal) Division of the Court of Appeal. The Lord Chief Justice addressed this in R v Aldridge and R v Eaton [2012] ECWA Crim 1456, saying the absence of an express provision for an appeal against a variation or refusal to vary the original order to be treated as an appeal against sentence was “a clear legislative oversight”. Repeating the decision in Hoath he said it was, “a matter of complete indifference” to the defendant which division of the Court of Appeal heard the appeal.

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 for which the notification requirements apply depends upon the length or nature of the sentence and range from 2 years in the case of a caution to indefinitely if the sentence is imprisonment for 30 months or more. SHPOs and the notification provisions are entirely different. The first prohibit the subject from doing specified things, whilst the second requires the carrying out of certain actions.

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”.

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

On 8 March 2015, Risk of Sexual Harm Orders were replaced by 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 orders are generally made against an individual who has not been convicted or cautioned for the offence but who nevertheless is thought to pose a risk of harm to the public in the UK and or children or vulnerable adults abroad.

The defendant must have done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made. A Sexual Risk Order is a Civil Order.

The Court must be satisfied that as a result of the act of a sexual nature, it is necessary to make such an order for the purpose of protecting the public or any particular members of the public from harm from the defendant or protecting children or vulnerable adults generally or any particular children or vulnerable adults from the defendant outside the United Kingdom.

Such an order has effect for a fixed period (not less than two years) or until further order.

Breach of a Sexual Risk Order 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.