Disparities in public protection measures against sexual offending in England and Wales: An example of preventative injustice?
| Author | Kirsty Hudson,Andrew Henley |
| DOI | 10.1177/1748895815577219 |
| Published date | 01 November 2015 |
| Date | 01 November 2015 |
| Subject Matter | Articles |
Criminology & Criminal Justice
2015, Vol. 15(5) 561 –577
© The Author(s) 2015
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DOI: 10.1177/1748895815577219
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Disparities in public protection
measures against sexual
offending in England and
Wales: An example of
preventative injustice?
Kirsty Hudson
Cardiff University, UK
Andrew Henley
Keele University, UK
Abstract
This article analyses the use of criminal justice measures aimed at the prevention of sexual
offending across England and Wales. Specifically, it focuses on measures such as the ‘sex
offenders register’ and sexual offences prevention orders (SOPOs) and the use of sanctions for
their breach. Following a discussion of the apparent tensions between individual rights and public
protection measures we present an original analysis of data collated from Multi-Agency Public
Protection Arrangements (MAPPA) area reports over a nine-year period. Our analysis reveals
considerable variation between areas in both the risk-level allocation of cases, the imposition of
SOPOs and sanctions for non-compliance with MAPPA. We argue that these disparities raise
issues concerning both the rights and autonomy of those subjected to public protection measures
and highlight the need for further detailed research into MAPPA practices.
Keywords
Human rights, MAPPA, preventative justice, public protection, sexual offending, SOPOs
Introduction
Over the last two decades a raft of punitive legislation intended to manage the risks
posed by ‘known sexual offenders’ has developed. This has included the introduction of
Corresponding author:
Kirsty Hudson, Cardiff University, SOCSI, King Edward VII Avenue, Cardiff CF10 3WT, UK.
Email: hudsonkj@cardiff.ac.uk
577219CRJ0010.1177/1748895815577219Criminology & Criminal JusticeHudson and Henley
research-article2015
Article
562 Criminology & Criminal Justice 15(5)
supervisory oversight and monitoring of individuals in the community post-sentence
through the ‘Sex Offenders Register’1 and Multi-Agency Public Protection Arrangements,
or MAPPA2 (Stone, 2012; Thomas, 2011). The general trend has been for interventions
to be ‘strengthened’, ‘toughened’ and ‘tightened’ (Thomas, 2008), notably through the
Sexual Offences Act 2003 and more recently by the Sexual Offences Act 2003
(Notification Requirements) (England and Wales) Regulations 2012.3 Part 2 of the
Sexual Offences Act 2003, for example, introduced a range of new civil preventative
orders. These included: the sexual offences prevention order (SOPO), which replaced the
sex offender order (introduced by s. 2 of the Crime and Disorder Act 1998); restraining
orders (introduced by s. 66 of the Criminal Justice and Court Services Act 2000); foreign
travel orders, which impose travel restrictions on registered sex offenders (RSOs);4 and
risk of sexual harm orders, which can be imposed on persons who have no convictions
of any kind (Shute, 2004). Additionally, the Child Sex Offenders Disclosure Scheme
allows for information about RSOs to be shared with the public through controlled dis-
closure (see Chan et al., 2010; Kemshall and Wood, 2010; Kemshall et al., 2012).
Recent changes made in the Anti-Social Behaviour, Crime and Policing Act 2014
widen the use of such orders so that they can be used to manage the risk against adults as
well as children. For example, a new sexual harm prevention order will replace the sex-
ual offences prevention order and foreign travel order; and the sexual risk order (SRO)
has replaced the risk of sexual harm order. Due to the civil nature of these orders, the
standard of proof required for their imposition is based on the balance of probabilities
(their jurisdictional application and related debates surrounding the subject’s rights will
be discussed later in the article). They then essentially entail the use of what Kemshall
and Maguire (2002: 14) have termed ‘negative conditions’ to restrict and control the
subject’s behaviour in the community. All carry criminal penalties should they be
breached, including up to five years’ imprisonment (Knock et al., 2002; Shute, 2004).
While designed to limit and monitor the behaviour of particular individuals in the inter-
ests of public protection, the gravity of these potential consequences for RSOs clearly
underscores the importance of accurately evaluating their future risk of offending.
Currently, MAPPA oversees the assessment and management of ‘high risk’ individu-
als, notably RSOs (Stone, 2012; Thomas, 2011). MAPPA utilizes an inter-agency
approach to the operational practices involved in the risk assessment, supervision, sur-
veillance, intervention with, enforcement, compliance, and breach of, purportedly ‘high
risk’ cases. A three-tiered risk management system (ranging from Levels 1 to 3) is used
to target resources at those perceived as posing the highest level of risk (Level 3). The
risk level of the individual therefore determines the degree of restrictive, rehabilitative
and protective interventions put in place to manage risk, and the extent to which informa-
tion is shared between the agencies involved in MAPPA. The Home Office and latterly
the Ministry of Justice (MoJ) have issued various guidance manuals to MAPPA (e.g.
MoJ, 2007, 2012) and subsequent evaluations of the public protection arrangements have
been conducted which outline the risk management procedures used in relation to RSOs
(e.g. Kemshall et al., 2005; Maguire et al., 2001; Wood and Kemshall, 2007; see also
Kemshall, 2008; Wood and Kemshall, 2008). An area of concern that has been given
increasing recognition is the need for consistency in practice across the different 42
MAPPA areas in England and Wales. In particular, the need to ensure that all RSOs are
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