A substantial legal change has been made to the making of Sexual Harm Prevention Orders through the Police, Crime, Sentencing and Courts Act 2022 which was introduced on 29th November 2022. This blog explains what a SHPO is, the recent changes and how they will affect those convicted or suspected of committing a sexual offence.
What is a Sexual Harm Prevention Order?
A Sexual Harm Prevention Order (also known as a sexual offence prevention order) is an order made by the court in circumstances where it is is deemed necessary to do so to protect the general public or specific members of the public from serious sexual harm. An order is often applied for by the Crown Prosecution Service in all sexual offence cases however, the court must only make an order if it is necessary to protect the public from harm, if it is not necessary then the order must not be made.
Before the changes made by the 2022 act, SHPO’s could only prohibit a person from a certain activity and this had to be proportionate to the offence that they were convicted of. The changes now include allowing for obligations to placed on a person convicted or suspected to have committed a sexual offence, this means the court can place positive requirements on a person such as to complete a specific course or programme. The idea is that by placing positive requirements on a defendant then the order serves a more productive use by aiding in the rehabilitation of a defendant.
Section 103C of the SOA 2003 outlines that a SHPO may have effect for a fixed period of at least five years, or until a further order is made. Therefore, there is not one fixed time period for all cases, the orders vary from case to case and depend on the offences and circumstances of it.
Not fulfilling the requirements of the SHPO in other words breaching the order, is a criminal offence punishable with a term of imprisonment not exceeding 5 years.
What are the changes?
The application
An application for an SHPO can be made to the court by a Chief Officer of police, Director General of the National Crime Agency, Chief Constable of the British Transport Police and the Chief Constable of the Ministry of Defence police, in addition to the Crown Prosecution Service. An application can be made in respect of a qualifying offender who has acted in such a way to give reasonable cause to believe it is necessary for such an order to be made.
Examples of qualifying offences that are likely to lead to an SHPO being applied for are:
- Possession/making/distribution of IIOC
- Rape
- Exposure
- Voyeurism
- Grooming
- Child Sex Offences
Applications can be made in respect of both adult and youth offenders.
The civil standard of proof (section 174 Police, Crime, Sentencing and Courts Act 2022)
Prior to the introduction of the 2022 Act mentioned above, when the court was making a Sexual Harm Prevention Order the criminal standard of proof applied (beyond reasonable doubt). This has since changed by the implementation of section 174 to the act which now states that when determine whether the individual to whom the application for an SHPO relates the civil standard of proof applies (balance of probabilities), rather than the criminal standard (beyond reasonable doubt). This amendment brings these order in line with other civil orders such as Domestic Abuse Protection Orders introduced by the Domestic Abuse Act 2021.
Powers to impose positive obligations section 175
Until recently SHPO’s only imposed prohibitions on a person such as; not to have unsupervised contact with a person under the age of 18 or, restrictions on foreign travel. The amendments under section 175 now allow the courts to impose positive requirements on an individual such as to attend a behaviour change programme, drug or alcohol treatment, or to take a polygraph test. This can be a positive steps as it provides more rehabilitation opportunities for offenders.
Variation of the order
Subsections (5) and (11) amend section 350 of the Code and section 103E of the 2003 Act respectively to enable a SHPO to be renewed or varied so as to include additional positive obligations (for example, where an individual’s circumstances have changed).
How we can help
Our team at PCD Solicitors are up to date with all recent changes to the laws concerning SHPO's. We have successfully opposed applications for SHPO's for our clients by raising legal arguments concerning the necessity and proportionality of any proposed prohibitions.
A SHPO can seriously damage a persons ability to live a normal life, it can effect relationships within a family, the ability to work and to travel. It is extremely important when you are faced with the possibility of having an SHPO imposed you speak with a specialist solicitor to try and prevent this or to ensure that any prohibitions and/or obligations placed on you are necessary and proportionate to the offending.
For more advice on the issue of Sexual Harm Prevention Orders specific to your circumstances please contact one of our specialist lawyers for a confidential chat. We will hopefully put your mind at ease and guide you through the processes involved when the court is considering a SHPO.