The Sexual Risk Order and the Sexual Harm Prevention Order
| Published date | 01 March 2018 |
| Date | 01 March 2018 |
| DOI | 10.1177/0264550517748359 |
| Author | Terry Thomas,Sarah Kingston |
| Subject Matter | Articles |
Article
The Journal of Community and Criminal Justice
Probation Journal
The Sexual Risk Order
2018, Vol. 65(1) 77–88
ª The Author(s) 2018
and the Sexual Harm
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DOI: 10.1177/0264550517748359
Prevention Order:
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The first two years
Sarah Kingston
University of Lancaster, UK
Terry Thomas
Leeds Beckett University, UK
Abstract
We now have two years’ experience of the Sexual Risk Order and the Sexual Harm
Prevention Order, being the two civil orders brought in to replace and consolidate the
old Sexual Offences Prevention Orders (SOPO), the Risk of Sexual Harm Orders
(RSHO) and the Foreign Travel Order (FTO). This article looks at the background to
these orders that have given the police new powers and the process by which the law
was changed to bring in the new orders.
Keywords
Sexual Risk Orders, public protection, sexual offenders, civil prevention orders
Introduction
Sexual Risk Orders (SROs) and Sexual Harm Prevention Orders (SHPOs) were
introduced by the Anti-Social Behaviour, Crime and Policing Act 2014 (s.113 and
Schedule 5), which had inserted a new s122A-K into the Sexual Offences Act
2003; they were implemented from 8 March 2015. The purpose of this article is to
trace the origins of the Sexual Risk Order, including a background report on which it
Corresponding Author:
Sarah Kingston, School of Law, University of Lancaster, Bailrigg, Lancaster, LA1 4YW, UK.
Email: s.kingston@lancaster.ac.uk
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Probation Journal 65(1)
was based and the parliamentary procedures and debates that took place. A
Sexual Risk Order is a civil preventative order that is wide ranging in its provisions
and ‘prohibits the defendant from doing anything described in the order’ (Sexual
Offences Act 2003 s122A (7) (a)).
During 2016 the press became much pre-occupied with the story of a man in
North Yorkshire who had been made subject to a Sexual Risk Order banning him
from having sex unless he told police 24 hours in advance. He also had to provide
the police with details of the proposed partner. News of the order and its ‘24 hour’
requirements first broke in January 2016 when an interim Sexual Risk Order was
applied for by the North Yorkshire Police and was made at Northallerton Magis-
trates’ Court; the man was not named (BBC News, 2016; Brooke, 2016); by
22 September 2016 the 24 hour notice was replaced by the phrase ‘as soon as is
reasonably practicable’ and a series of conditions were attached to the order
(Finnigan, 2016). For the press the story was the ‘extreme’ degree of intrusion that
the state could now reasonably make into a person’s private life.
Civil preventative orders
Even before it came to power the Labour Party’s original idea was to have an all-
encompassing Community Safety Order that would tackle ‘low level criminality’ or
behaviour that was not even criminal (Labour Party, 1995). The civil law would
thereby edge into areas of non-criminal activity, but activity that was considered
‘anti-social’ and ‘undesirable’. Lawyers warned of the consequences (Ashworth
et al., 1998), but the ‘two-step’ idea of civil orders was introduced to prohibit
certain behaviour with the follow-up of criminal sanctions if those prohibitions were
ignored (Burney, 2005; Simester and Von Hirsch, 2006). Labour’s one all-
encompassing order was deemed not possible, but the 1998 Crime and Disorder
Act introduced both the Anti-Social Behaviour Order (ASBO) and the Sex Offender
Order (SOO) (Crime and Disorder Act 1998 ss. 1 and 2).
The Sex Offender Order (SOO) was to be applied for by the police from a
Magistrates’ Court. The criteria were that the person in question already had a
conviction for a sexual offence and was now acting in ‘a way as to give reasonable
cause to believe that an order under this section is necessary to protect the public in
the United Kingdom, or any particular members of that public, from serious harm
from him’ (1998 Act s.2). An evaluation of Sex Offender Orders found only 170
had been made by June 2002, but the police were generally pleased with their
effect (Knock, 2002).
Sexual Offences Prevention Orders, Risk of Sexual Harm Orders and
Foreign Travel Orders
The Sexual Offences Act 2003 replaced the SOO with three new separate civil
preventive orders – the Sexual Offences Prevention Orders (SOPO), the Risk of
Sexual Harm Orders (RSHO) and the Foreign Travel Orders (FTO) (Sexual Offences
Act 2003 Part Two; see also Home Office, 2016). These orders appeared to
Kingston and Thomas
79
emerge from the growing public concern about sexual offenders at this time, and no
substantive research had been completed to say whether the evidence existed that
the orders would make a difference.
i. The Sexual Offences Prevention Order (SOPO) was the nearest equivalent to
the SOO and was again intended to protect the public from the risk of
‘serious sexual harm’ posed by known and convicted sex offenders. Risk in
this context was said to include reference to:
the likelihood of the offender committing a sexual offence;
the imminence of that offending; and
the seriousness of the harm resulting from it (Home Office, 2015: 34).
As with the SOO, the order prohibits the offender from doing anything described
in the order. The decision of the Court of Appeal in R v Smith and others [2011]
EWCA Crim 1772 makes the point that the SOPO needs to be tailored to the exact
requirements of the case.
ii. The Risk of Sexual Harm Order (RSHO) was meant to tackle the perceived
problem of ‘grooming’ children for sexual activities; the RSHO could be
placed on an individual whether or not he or she had a previous conviction,
to prohibit his or her perceived activities, whether this ‘grooming’ was face-
to-face or online. The sort of activities the law wanted to prohibit included:
engaging in sexual activity involving a child or in the presence of a
child;
causing or inciting a child to watch a person engaging in sexual
activity or to look at a moving or still image that is sexual;
giving a child anything that relates to sexual activity or contains a
reference to such activity; and
communicating with a child, where any part of the communication is
sexual. (Sexual Offences Act 2003s.123 (3))
Critics pointed out that the first two of these acts were crimes in themselves, and
that if the evidence existed for a civil order perhaps the acts ought to be prosecuted
as a crime rather than made the subject of civil orders (see Craven et al., 2006,
2007).
iii. Foreign Travel Orders (FTO) were to prevent people going abroad if it was
thought they intended to cause ‘serious sexual harm’ to children; the person
concerned must already have a conviction for a sexual offence against a
child and his or her behaviour must give concern and reasonable cause to
believe that it is necessary for such an order to be made. The police apply-
ing for any of these orders were reminded that the application should be
proportionate.
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Probation Journal 65(1)
The civil preventative orders in Part 2 of the 2003 Act are public protection tools.
Any interference with the offender’s right to a private and family life (under Article 8
of the ECHR) must be...
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