New Civil Orders to Contain Sexually Harmful Behaviour in the Community
| Author | Terry Thomas |
Introduction
The new Anti-Social Behaviour, Crime and Policing Act which received its Royal Assent on 13th March 2014 contains provisions for two new Orders for the regulation of behaviour likely to cause sexual harm. The two Orders are:
- the Sexual Risk Order; and
- the Sexual Harm Prevention Order
These Orders will replace the existing Sexual Offences Prevention Orders (SOPOs), Risk of Sexual Harm Orders (RSHOs) and Foreign Travel Orders (FTOs) available in the Sexual Offences Act 2003. The Anti-Social Behaviour, Crime and Policing Bill was first published on 4th June 2013 and Home Secretary Theresa May gave notice of amendments to the Bill to include these new Orders on 8th October 2013.
The Orders follow the now familiar hybrid pattern of law involving civil prohibitions and criminal enforcement. An Order will place prohibitions on individuals to desist from certain behaviour and if breached that person commits an offence and becomes liable for prosecution in the criminal courts. The prosecution is, of course, for the technical, administrative offence of breaching conditions and does not, for example, imply any substantive sexual offence has taken place. Some commentators have referred to the 'two-step prohibition' nature of such laws to describe how the civil law is used first and the criminal law follows up if there is breach of the civil order (von Hirsch & Simester, 2006).
The prime movers for the new Orders were the Association of Chief Police Officers (ACPO) who published a report in May 2013 calling for a review of the present arrangements. The existing regime was dismissed as reflecting 'the historic origin of the legislation rather than any purposive logic' (Davies Report, 2013, para5.2).
This article begins by looking at 'the historic origin' of these Orders and the current thinking and campaigning behind the need for the new Orders. It also considers the nature and effect of the new and old Orders with respect to human rights and child protection.
The Existing Orders and Historic Origins
The existing Orders can all be found in the Sexual Offences Act 2003 Part Two.
Sexual Offences Prevention Orders (SOPO)
The Sexual Offences Prevention Order or SOPO has the longest history of the three civil prevention orders to be replaced. The SOPO started life as the Community Protection Order (CPO) and was later renamed as the Sex Offender Order (SOO) when it reached the statute book in 1998; it became the SOPO in 2003.
In one of the first major policies following their election in 1997, the New Labour government introduced their flagship policy of tackling Anti-social Behaviour. It was initially hoped that the Anti-social Behaviour Order or 'ASBO' could be used on those persons/individuals displaying harmful sexual behaviour. As it became apparent that a separate Order was going to be needed, so the Community Protection Order was introduced to be specifically used with those displaying harmful sexual behaviour (Home Office, 1997: para.3). The secondary need stated for the introduction of the Community Protection Order was to add more names to the recently started sex offender register. The register was launched on 1 September 1997 and was not retrospective. This meant it did not apply to any one committing offences before that date unless they were still in prison or under supervision. Estimates suggested that as many as 110,000 people were living in the community with convictions for sexual offending at that time (Marshall 1997) and the register was simply not going to apply to them. As such, the Community Protection Order was seen as one way of collating these names and ensuring they were on the register (Home Office 1997: para2).
The Community Protection Order was renamed as the Sex Offender Order (SOO) in the Crime and Disorder Act 1998 (ss2-4). It was applied for by the police in a magistrates' court if a person with a conviction was considered a cause for concern, displaying inappropriate behaviour and the SOO was necessary to 'protect the public from serious harm'. 'Serious harm' was originally as defined by the Criminal Justice Act 1991 s31 (3) and later the Powers of Criminal Courts Act 2000:
'In this Act any reference, in relation to an offender convicted of a violent or sexual offence, to protecting the public from serious harm from him shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him.' (Powers of Criminal Courts Act, 2000, s161 (4))
When the SOO was made it outlined the behaviour that was to be prohibited and any breach was to be dealt with in the criminal courts. The Police Reform Act 2002 amended the law to allow for interim emergency SOOs.
The civil provisions covering sex offenders were again updated in 2003 when the SOPO was created in the Sexual Offences Act 2003 when the SOO was merged with the Restraining Order (RO). As with the SOO's, the police applied to the magistrates' court for them to be imposed to prevent 'serious sexual harm' defined as:
'protecting the public in the United Kingdom or any particular members of that public from serious physical or psychological harm, caused by the defendant committing one or more offences listed in Schedule 3.' (Sexual Offences Act 2003 s106(3)).
SOPOs were made by magistrates with, again, a list of prohibited activities in them. The Home Office states that:
'[A SOPO] may, for example, prohibit someone from undertaking certain forms of employment such as acting as a home tutor to children. It may also prohibit the offender from engaging in particular activities such as visiting chat rooms on the internet. The behaviour prohibited by the order might well be considered unproblematic if exhibited by another member of the public – it is the offender's previous offending behaviour and subsequent demonstration that he may pose a risk of further such behaviour, which will make him eligible for an order.' (Home Office, 2010:50)
The commission of any of these activities would lead to a criminal prosecution for a breach offence having been committed; breach of the SOPO was dealt with as a criminal offence and was punishable on summary conviction by a fine and/or maximum 6 months imprisonment or on indictment by up to 5 years imprisonment (Sexual Offences Act 2003 ss104-113).
Foreign Travel Orders (FTO)
As well as the introduction of SOPOs in the Sexual Offences Act 2003, a new Foreign Travel Order (FTO) was introduced; the Order was designed to prevent certain people travelling abroad.
Registered sex offenders had to notify the police of their international travel plans if they were going abroad for more than eight days (Sex Offenders (Notice Requirement) (Foreign Travel) Regulations 2001 No. 1846) but after campaigning by ECPAT (End Child Prostitution and Trafficking) this eight day period was reduced to three days (Sexual Offences Act 2003 (travel Notification Requirements) Regulations 2004 No. 1220). Notice of travel was to be made to the police at least seven days prior to travel.
Since 2012, the three day period has also been reduced and now notice for any travel abroad must be given by those on the UK sex offender register (Sexual Offences Act 2003 (Notification Requirements) (England and Wales) Regulations 2012 No. 1876). The Home Office has stated that there are three reasons for this:
'First, it enables local police to know the whereabouts of sex offenders and, in doing so, avoids sex offenders claiming that they have not complied with the notification requirements of the 2003 [Sexual Offences] Act because they were overseas. Second, it enables the police, where appropriate, to inform other jurisdictions that a sex offender is intending to visit their country. The information provided by the foreign travel notification requirements assist the police in making sensible judgements about whether to pass information about the risk an offender poses to other jurisdictions in order to prevent an offence from being committed overseas. Third, it gives the police the opportunity to decide whether to apply for a Foreign Travel Order to prevent the offender travelling abroad.' (Home Office, 2012a, p.22)
Convicted sex offenders might travel...
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