Tag Archives: SOPO

Home Office annoucement on new powers protect vulnerable from sexual predators

On 9 October 2013, the Home Office announced there would be ‘tighter restrictions on sex offenders’ in a new Bill which will make its way through Parliament in 2014.

The announcement was headed

‘New measures to give greater powers for the police to protect the vulnerable from sexual predators have been unveiled by the Home Office.’

The new powers will, the Home Office claim, ‘make it easier to restrict the activities of anyone who poses a risk of sexual harm to children and adults.’ As usual with government announcements like these, there is scant detail, however the press release states that ‘the threshold for risk will be lowered to cover any case of sexual harm, not just cases of serious sexual harm.’

Who do they apply to?

Sexual Offences Prevention Orders (Sexual Offences Act 2003 s 104 onwards)

Currently, there are two types of SOPO:

1) Made after a conviction for an offence listed in SOA 2003 Sch 3 or 5

i) The necessity test must be met (it is necessary to make such an order for the purpose of protecting the public, or any particular members of the public from serious sexual harm from the defendant)

These include the major sexual offences, but also offences such as murder, making threats to kill, outraging public decency and endangering the safety of railway passengers. It also includes ABH and assault with intent to resist arrest.

2) A ‘stand-alone’ order, where a police force can apply to the court for an order to be made, where

  1. The defendant is a qualifying offender

i. Convicted of a Schedule 3 or 5 offence,

ii. Cautioned in respect of a Schedule 3 or 5 offence, or

iii. Convicted of or cautioned for an equivalent Schedule 3 or 5 offence outside the jurisdiction

iv. (there are other criteria which for the purposes of this piece are not relevant)

  1. The necessity test is met (it is necessary to make such an order for the purpose of protecting the public, or any particular members of the public from serious sexual harm from the defendant)

Risk of Sexual Harm Order (Sexual Offences Act 2003 s 123 onwards)

The court has the power to make a stand-alone order where a police force have applied to the court. The individual must be aged 18+ and who has on at least two occasions have done one of the following acts:

(a) engaging in sexual activity involving a child or in the presence of a child;

(b) 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;

(c) giving a child anything that relates to sexual activity or contains a reference to such activity;

(d) communicating with a child, where any part of the communication is sexual.

This does not require a conviction.

The press release stated:

‘Sexual Harm Prevention Orders can be applied to anyone convicted or cautioned for a sexual or violent offence, including where offences are committed overseas…and can be made by a court on conviction, or if the police or National Crime Agency (NCA) apply to a magistrates’ court.

Sexual Risk Orders can be applied to any individual who poses a risk of sexual harm in the UK or abroad, even if they have never been convicted. They will replace the Risk of Sexual Harm Order.’

The press release therefore appears to suggest that the criteria will be the same as before.

How long will they last?

A SOPO must be for a minimum of 5 years and can last indefinitely.

A Risk of Sexual Harm Order must not be for a period less than 2 years.

The press release stated:

The new Sexual Harm Prevention Order will last for a minimum of 5 years with no maximum.

The new Sexual Risk Order will last for a minimum of 2 years with no maximum.

No change there then.

Restrictions

SOPOs impose restrictions on people’s behaviour which are designed to protect the public. The restrictions tailor made by the court to meet the needs of the individual case. Below are some terms approved in one recent case.

(i) possessing any photograph in any form of any child under 16 years other than a member of the offender’s family, and then only with the written permission of the child’s parent or guardian (not including the offender),

(ii) possession of any computer, iPhone or mobile telephone without notifying the offender’s monitoring police or probation officer of its acquisition within three days thereof,

(iii) using any computer, etc., capable of accessing the internet that did not have the capacity to retain and display the history of internet use,

(iv) attempting to delete the internet history on any computer, etc., and

(v) denial of access by a police officer to any such history on request.

Risk of Sexual Harm Orders also prohibit individuals from doing certain acts. The restrictions operate in a similar way to SOPOs.

The press release stated:

‘Both powers can place a range of restrictions on individuals depending on the nature of the case, such as limiting their internet use, preventing them from being alone with a child under 16, or preventing travel abroad.

As you can see, the situation appears to be very much preserving the status quo / wasting time and money [delete as appropriate to your view].

So what is *actually* new?

The press release states:

‘The threshold for risk will be lowered to cover any case of sexual harm, not just cases of serious sexual harm.’

This would appear to suggest that the test (listed above in the SOPO section) will be lowered, thereby making it easier to impose such an order.

This raises questions as to why this is necessary, what research has been conducted to support this, and whether there are currently police forces and prosecution counsel applying for these orders and the applications are being refused not on the grounds that the individual does not pose a risk of harm, but that the harm likely to be suffered is not serious enough to warrant making an order.

With little detail, we will have to wait and see. But once again, this strikes me as a PR exercise with little by way of substance.

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R v Beeden – Case Comment (Breach of a SOPO)

SummaryAppeal against sentence to the Court of Appeal for 9 months following a guilty plea to breaching a SOPO.

Overview – Mr Beeden had a history of sexual offending against children. This culminated in him receiving a SOPO, one of the terms being a prohibition on  ‘owning or having personal possession of any equipment or device capable of connecting to the internet‘. This was imposed (seemingly) in 2010. He breached this once and was sent to prison the next year. This appeal arose out of a visit to his house in June of 2012 where he was found to have a laptop with a broadband connection. After being released on bail, he was found in his house again with a tablet that could connect to the internet. He pleaded guilty to both and was sentenced to a total of 9 months (3 for the first consecutive to 6 for the second).

However, prior to the sentence, Mr Beeden had successfully applied to the Court to vary the terms of the SOPO (presumably as it was far too restrictive) to allow him access to the internet (with certain conditions). The appeal was on the basis that as the SOPO was amended (and, it was seemingly accepted, should not have been made in the terms that it was) this lowered Mr Beeden’s culpability. The Court gave this argument short shrift – they said that the fact of a subsequent amendment is no mitigation at all. The order, once made, must be obeyed.

Analysis – We don’t have the full transcript (just summaries from Lawtel,  Westlaw and CrimeLine).

Was the Court right? Does the fact that the SOPO was amended make no difference to sentence? It is clear that the fact that it should not have been made is not a defence (see T v DPP [2006] EWHC 728 (Admin) – an ABSO case) – although if the SOPO had not been lawfully made this would be different (Lawson [2008] EWCA Crim 416).

The Court has previously said in relation to ASBOs that if there is a term that appeared in an interim ASBO that does not appear in the final ASBO, then breaching that term does not make the offence less serious. This seems on the face of it to be similar. To that extent, there is ‘authority’ for what the Court are saying.

We have commented previously on the problems with SOPOs being made that should not have been, so this is a problem that will not go away.

Comment – In assessing the seriousness of any offence it is important to go back to consider the reasons why the activity is criminal. Here, the purpose of a SOPO is to protect the public. To do this involves a restriction on the liberty of a citizen and can make a great impact on their freedom. For this reason, rightly, it cannot be imposed unless it is necessary to protect the public.

If it is determined that it is was not, in fact, necessary to have imposed a particular condition, then the rationale for its imposition has gone. Whilst it may not impact on the state of mind of the defendant (although if his lawyer told him that the order could be challenged, it may not be surprising if he took it less seriously), the harm caused by the breach is necessarily less.

For that reason, I would suggest that to say this can make no difference to the sentence is wrong. Whilst it is accepted that the criminality is the breach of a court order, the fact that it was a ‘wrong’ order should be reflected in a lower sentence.

Sexual Offences Prevention Orders (SOPOs)

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

The basics

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)

The terms

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)

Variations etc.

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)

Appeals

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)

The test

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)

Key considerations

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?

Key cases

R v Smith and Others 2011 EWCA Crim 1772
R v Instone 2012 EWCA Crim 1792