Sexual Risk Orders (SRO's) are of special interest and becoming increasingly used by the police because of the profound impact they can have on a persons life, without that person ever having been convicted of a criminal offence. The direct consequences of being made subject to these orders are, arguably, a massive disproportionate punishment and a huge injustice.
What is a sexual risk order?
A sexual risk order is an order made by the Magistrates Court on application from a Chief Police Officer or the Director General of the National Crime Agency in respect of a person where the following conditions are met:
- The person has either before or after commencement of the Sexual Offences Act 2003 done an act which is of a sexual nature and that because of this it is necessary a sexual risk order is applied;
- The person resides in the chief officers area or is intending to come into it.
The purpose of an SRO is to protect the public or any particular members of the public from harm from the defendant or, to protect children or vulnerable adults from harm from the defendant outside of the UK.The court can place an interim SRO on a defendant which would be put in place to protect the public during any period between the application for a full order and its determination. The court can only impose an interim order where it is "just" to do so. There is no legal test as to whether the decision is "just" it is just dependent on the circumstances of the case.
The Home office Guidance suggests a risk assessment should include: “behaviour that is not wrong by itself but may become so because of the intention
How long can a Sexual Risk Order last?
An SRO can be in effect for a fixed period (not less than two years) specified in the order or, until a further order is made, in theory this could potentially be for life. The SRO can specify different time periods for different prohibitions within the order.
How a sexual risk order affects a defendant?
- May and often does last for a period of 10 years or more.
- If breached, can lead to a prosecution and a possible custodial sentence.
- Can be extended on sometimes the most weakest application.
- Can render the subject unemployable for the rest of their working life.
- Prevents and forbids contact with children in certain circumstances.
- Impact on new relationships as the police will want to inform any new partner and conduct risk assessments upon any family they have.
- Restriction on foreign travel (even for holidays).
- Impact on defendant’s human rights.
There is no trial, no jury and no witnesses, how can the court determine if the defendant has committed a sexual act and poses a risk?
In the criminal courts of England and Wales a person can only be convicted of an offence if they plead guilty or, are found guilty. Where a trial takes places the criminal rules of evidence apply and the jury can only convict a defendant if they are sure the evidence shows guilt. However, where there is an application for a Sexual Risk Order, no live witness need ever be called by the police to support their application and if the police do bring a live witness to court then no witness can be cross examined, this contradicts all the rights afforded to a “defendant” throughout criminal proceedings.
For the court to impose an SRO it must be proved, beyond reasonable doubt that a person has done an act of a sexual nature, however, it must only be proven on the balance of probabilities (that it is more likely than not) that there is reasonable cause to believe that is necessary to make an order to protect the public from harm. The standard of proof is therefore, much lower than the usual evidence required for a criminal conviction and puts a defendant in an extremely vulnerable position.
Misuse by the police of interim sexual risk orders
The Sexual Offences Act 2003 was amended by The Anti-Social Behaviour, Crime and Policing Act 2014. The police, and particularly the NCA are slowly starting to realise the weapon the act has provided to them and that they can obtain an order of the most draconian terms against any person of interest, without having to prove any offence to the criminal standard.
Once a person is made subject to such an order the police can attend their home unannounced and demand to inspect all communication devices and the history of searches contained within each. In reality there is no ability to refuse such a visit or inspection.
At PCD solicitors we find the police make serious mistakes when exercising their powers afforded to them, such as:
- Failing to understand and recognise the differences in the legal obligations placed on defendants who are subject to Sexual Risk Orders, as opposed to other orders under the same act such as Sexual Harm Prevention Orders.
- They are prone to misapply the rules of evidence and have a habit of serving evidence within applications that has little or no relevance and may even be inadmissible.
- Arrests are made too quickly for potential breaches which can easily lead to a custodial sentence.
What to do if you you find yourself subject to a Sexual Risk Order?
PCD Solicitors have a strong reputation for our proactive approach when defending clients who are either going through the extremely stressful process of having an order applied for against them, or who want to appeal an SRO to the Crown Court under section 103 of the Sexual Offences Act 2003.
We liaise with police during the early stages of cases to ensure the correct procedures are followed and that the police have an understanding of the law surrounding orders imposed under the Sexual Offences Act 2003.
We often advise clients that their case begins from the day they are contacted by the police or the day they are arrested. What is said and done in a clients case from that point on will impact their case going forwards, it is important you have a specialist solicitor ready to fight for you and challenge any evidence and or application the police will want to use against you.
Where an SRO is successfully opposed there is scope for legal costs to be recovered from the police force bringing the application. At the conclusion of a successful case we can take steps to recover legal costs where we are able to.
If you, a friend or family member would like any information regarding an investigation or protentional investigation relating to a sexual offence allegation, please get in touch with one of our specialist lawyers on 0151 705 8488.