Substantial legal changes have been made to the making of Sexual Harm Prevention Orders through the Police, Crime, Sentencing and Courts Act (PCSCA) 2022, which was introduced on 29th November 2022.
This blog explains what a SHPO is, the recent changes to this system, and how they could affect those convicted or suspected of committing a sexual offence in the UK.
What is a Sexual Harm Prevention Order?
A Sexual Harm Prevention Order (SHPO) – previously known as a Sexual Offences Prevention Order (SOPO), until it was replaced by SHPO in 2015 – is an order made by the court in circumstances where it is deemed necessary to protect the general public or specific members of the public from serious sexual harm.
A court can impose a Sexual Harm Prevention Order if an individual is convicted of a Schedule 3 or Schedule 5 offence under the Sexual Offences Act (SOA) 2003.
A SHPO is applied for by the Crown Prosecution Service in most 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.
These orders not only require the offender to register with the local police and update their details annually (known as being on the Sex Offenders’ Register), but they can also impose prohibitions to prevent the offender from engaging in activities where they might pose a risk to the public, such as jobs interacting with children or vulnerable adults.
Section 103C of the SOA 2003 outlines that a SHPO may take effect for a fixed period of at least 5 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, depending on the offence and circumstances.
Not fulfilling the requirements of the SHPO, known as breaching the order, is a criminal offence punishable with a term of imprisonment not exceeding 5 years.
All of this still applies, but the PCSCA 2022 introduced the following changes to the behaviour management of suspected or convicted sex offenders.
SHPO application changes
Previously, the Crown Prosecution Service could make an order on conviction of a qualifying sexual offence in either a Magistrates’ Court or the Crown Court.
Examples of qualifying offences that are likely to lead to an application for a SHPO are:
- Possession, making, or distribution of indecent images
- Sexual assault
- Rape
- Exposure
- Voyeurism
- Grooming
- Child sex offences.
A SHPO application can be made if a qualifying offender – whether adult or youth – has acted in such a way to give reasonable cause for the police or court to believe that it is necessary for such an order to be made.
The police may also be able to apply for an interim SHPO without a conviction if the accused poses a sexual harm risk during the prosecution process (between being charged and sentenced if convicted).
Now, an application for a SHPO can be made to the court by a Chief Police Officer, the Director General of the National Crime Agency, the Chief Constable of the British Transport Police, or the Chief Constable of the Ministry of Defence.
SHPO standard of proof
Section 174 of the Police, Crime, Sentencing and Courts Act 2022 has made significant changes to the standard of proof required when applying for a SHPO.
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 – the accused must be believed to have committed the sexual offence beyond reasonable doubt.
This has since changed with the implementation of Section 174, which now states that when determining whether the individual to whom the application for a SHPO relates would qualify, the civil standard of proof applies – based on the balance of probabilities.
Rather than the criminal standard, SHPO applications must now meet the civil standard, satisfying the court that the facts make it more likely than not that the defendant acted in a way that makes it necessary to make an order for the purposes of protecting the public from sexual harm.
This amendment brings SHPOs in line with other civil orders, such as the Domestic Abuse Protection Orders introduced by the Domestic Abuse Act 2021.
SHPO positive obligations
Before the changes made by the 2022 Act, SHPOs could only prohibit someone from a certain activity, which had to be proportionate to the offence that they were convicted of. SHPOs only imposed restrictions are the prevention of unsupervised contact with a person under the age of 18 or restricting foreign travel.
Under Section 175, the changes now allow positive obligations to be placed on a person convicted or suspected of committing a sexual offence.
This means the court can also place positive requirements on a person, requiring them to carry out a designated activity rather than just restricting them from doing something – such as completing a specific course or programme.
The amendments under Section 175 now allow the courts to impose positive requirements like taking a polygraph test, attending a behaviour change programme, or undergoing a course for drug or alcohol treatment.
Whichever prohibitions or positive requirements are imposed must avoid conflicts with any other court orders or injunctions the offender is subject to, the offender’s normal working or educational schedules, or their religious beliefs.
The idea is that placing positive requirements on a defendant allows the order to serve a more productive purpose by aiding in their rehabilitation.
This can be a positive step, as it provides more opportunities for offenders to limit their risk of re-offending and eventually reintegrate into society safely.
Failure to meet an SHPO obligation could result in a prison sentence of up to 5 years.
SHPO electronic monitoring
While electronic monitoring conditions could already be included in SHPOs and SROs (Sexual Risk Orders), the PCSCA 2022 clarifies the process for a court to impose these as a requirement for an offender subject to a SHPO or SRO.
Of course, not all individuals who are subject to a SHPO will be required to wear an electronic monitoring tag to supervise their compliance with the conditions of the order. A court will only impose this if it is considered necessary for the public’s protection.
The requirement can only proceed if the availability of resources in the area where the defendant lives and/or the order is issued allow the necessary provisions to be made, including the identification of a specified person responsible for the monitoring.
If an electronic monitoring requirement is imposed, the defendant must submit to the fitting or installation, maintenance, and inspection of the necessary apparatus, as and when required by the responsible person under the SHPO.
While SHPOs can be imposed for terms of at least 5 years, an electronic monitoring tag requirement can only be imposed for up to 12 months at a time – though it can be extended for a further 12 months after expiry if needed.
As a condition of the SHPO, if the individual does not comply with electronic monitoring requirements, this breach of the order can also result in up to 5 years in prison.
SHPO variations
The conditions of a SHPO are expected to be no more than what is considered necessary, and should not be difficult to uphold or easy to accidentally breach.
These terms are not always fixed for the duration of the SHPO, as they can be varied if the offender’s circumstances have changed in a way that affects their ability or the necessity to follow an existing requirement, or the need to introduce a new obligation.
Under the 2022 Act, Subsections (5) and (11) amend Section 350 of the Code and Section 103E of the 2003 Act respectively, now enabling a SHPO to be renewed or varied to include additional positive obligations (e.g. where an individual’s circumstances have changed).
If there is a qualifying reason for a SHPO to be varied, the police can make an application.
The subject of the SHPO can also make an appeal to vary their order if they believe the prohibitions or obligations are not proportionate to their offence or their current circumstances, compared to those at the time the order was made.
How PCD Solicitors can help
A SHPO can seriously damage a person’s ability to live a normal life, as it can affect relationships with family and friends as well as the ability to work and travel.
Anyone subject to a SHPO must declare it to employers, insurance providers, or other institutions when asked for the duration of the order, as it will be revealed through DBS checks by the Disclosure and Barring Service.
Even after it has been spent, the SHPO will stay on the Police National Computer, so it can still affect future criminal proceedings. Additionally, a spent SHPO must still be declared in certain conditions, such as working with children.
If you are faced with the possibility of having a SHPO imposed on you, it is extremely important that you speak with a specialist solicitor to try to prevent this from happening – or to ensure that any prohibitions and/or obligations placed on you are necessary and proportionate to the offending.
Our team at PCD Solicitors is up to date with all recent changes to the laws concerning SHPOs. We have successfully opposed SHPO applications for our clients by raising legal arguments concerning the necessity and proportionality of any proposed prohibitions.
For more advice on Sexual Harm Prevention Orders or guidance specific to your circumstances, please contact us for a no-obligation confidential chat with one of our specialist lawyers.
We will hopefully put your mind at ease as our sexual offence solicitors guide you through the processes involved when the court is considering a SHPO.