Legislation Sexual Offences Act 2003 s 104-113
Maximum length Indefinite (SOA 2003 s 107(1)(b))
Minimum length 5 years (SOA 2003 s 107(1)(b))
Which court can make an order? Youth Court, Magistrates’ Courts, Crown Courts
These orders are civil behaviour orders or ‘preventive orders’ imposed upon conviction (‘post-conviction orders’) or upon complaint (‘stand-alone orders’). The former are by far the most common.
The orders specify terms which prohibit the person subject to the order from doing certain things. The orders are targeted at sexual offending and are designed to prevent the commission of acts or offences which would cause serious sexual harm to another person.
SOPOs are from the same family as ASBOs. A SOPO operates in a similar way to an ASBO in that it is preventative in nature, targeted at the behaviour of the person subject to the order. Consequently, many of the principles are the same.
Power to order
Stand-alone orders The power is a discretionary power.
A Chief Officer of Police may by complaint make an application if a) it appears that that the defendant has been convicted of a Schedule 3 offence (list here) or a Schedule 5 offence (list here), or if he has been cautioned for such an offence, and b) the defendant has acted in a way as to give reasonable cause to believe that an order is necessary.
(SOA 2003 s 104(1) and (4))
Post-conviction orders The power is a discretionary power.
Step 1 Is the court dealing with the defendant for a Schedule 3 or 5 offence? (SOA 2003 s 104(2))
Step 2 Is the court satisfied that it is necessary to make such an order for the purposes of protecting the public from serious sexual harm? (SOA 2003 s 104(1)(a) and (b))
NB. The focus of Step 2 must be the risk of further offending. (R v D 2005 EWCA Crim 3660)
Interim orders A court may make an interim order when considering whether to make a stand-alone order. (SOA 2003 s 109)
What is ‘serious harm’?
Death or serious personal injury, whether physical or psychological. (PCC(S)A 2000 s 161(4) and R v Halloren 2004 EWCA Crim 233)
Drafting the order
Serving the draft on the defence to allow for proper scrutiny
A written draft must be properly considered in advance of the sentencing hearing. The normal requirement is that it is served on the court and the defence before the hearing. The Court of Appeal have suggested two clear days as a suitable time period, but in any event the draft is not to be served at the hearing. (R v Smith and Others 2011 EWCA Crim 1772)
The judge and the defence must have proper opportunity to scrutinise the proposed order and discuss its terms. (R v Guest 2011 EWCA Crim 1542)
Must be prohibitive in nature, as opposed to requiring the defendant to positively do something. (R v Smith 2009 EWCA Crim 785
Must not be oppressive (R v Collard 2004 EWCA Crim 1664)
Must be expressed in simple terms, easily understood by those who are not particularly bright (B v Chief Constable of Avon & Somerset Constabulary 2000 EWHC 559 (Admin)
Must not be vague. The twin tests are necessity and clarity. A subtest of necessity is proportionality. The real risk of unintended breach must be avoided. (R v Smith and Others 2011 EWCA Crim 1772)
A term is not necessary if it duplicates another regime to which the defendant is subject to by virtue of his conviction(s) for sexual offences. The following should be considered: a) notification, b) disqualification from working with children, and c) release on licence. (R v Smith and Others 2011 EWCA Crim 1772)
Where a defendant had shown no sign of progressing from making/possessing indecent images offences to contact offences, an order which prohibited him from having unsupervised contact with a child under 16 and his child while under 16, was unlawful. (R v Lea 2011 EWCA Crim 487)
Power to vary
The power to vary, renew or discharge a SOPO is contained within SOA 2003 s 108. An order may be varied so as to impose additional requirements. The test remains the same as for imposing a SOPO; is the term necessary for protecting the public from serious sexual harm from the defendant. (SOA 2003 s 108(5))
Discharging an order
An order may not be discharged before the expiration of the 5 year minimum term without the consent of the defendant and the chief officer of police. (SOA 2003 s 108(6)
Where to appeal against a variation
Appeals in relation to variations are to the Criminal Division of the Court of Appeal. (R v Aldridge and Eaton 2012 EWCA Crim 1456)
Power to appeal
A defendant may appeal against the making of a SOPO. (SOA 2003 s 110(1))
Where a defendant was prohibited from seeing his son, L, by a term in a SOPO, L did not have the right to apply to vary, renew or discharge the order. (R v D 2005 EWCA Crim 3660)
There are three questions:
a) Is the order necessary to protect the public generally, or any particular member of the public from serious sexual harm?
b) If it is necessary at all, are the particular terms of the order oppressive?
c) Are the terms of the particular order proportionate?
(R v Mortimer 2010 EWCA Crim 1303)
Old, unlawful orders
A defendant appealed a SOPO made in 2006, relying on the decision in R v Smith and Others 2011 EWCA Crim 1772. The Court held that the fresh guidance in Smith did not provide the basis for a successful appeal against a SOPO which was imposed long before that decision. The SOPO was imposed on the relevant legislation and guidance, and should not be varied on appeal because of subsequent changes to them. The Court stated that they are ‘not a review body for every SOPO’. (R v Instone 2012 EWCA Crim 1792 Lord Chief Justice)
Is the order necessary?
Are the terms clear, concise and capable of being understood?
Are the terms proportionate and targeted at the defendant’s behaviour?
R v Smith and Others 2011 EWCA Crim 1772
R v Instone 2012 EWCA Crim 1792