By Martha Odysseos, 5th December 2022
On the 29th November 2022 the Police, Crime, Sentencing and Courts Act 2022 (Commencement No. 5) Regulations 2022 (SI 2022/1227) brought into force certain provisions of the 2022 Act (CLW/22/18/23) that deal with the management of sex offenders.
Anyone convicted or cautioned for a sexual or violent offence can become subject to a Sexual Harm Prevention Order (SHPO) if they pose a risk of sexual harm to the public in the United Kingdom and/or children or vulnerable adults overseas. An order can be made by the court on conviction or by a magistrates’ court on application by the police or the National Crime Agency.
A Sexual Risk Order (SRO) can be imposed on a person without a conviction but who poses a risk of sexual harm.
The changes brought in by the Police, Crime, Sentencing and Courts Act 2022 mean that the British Transport Police and Ministry of Defence Police now also have the ability to apply for a SHPO, SRO, interim SHPO and interim SRO.
Standard of proof
The Police, Crime, Sentencing and Courts Act 2022 has made it clear that the court may make an order under S103A if they are satisfied on the balance of probabilities that since the appropriate date the defendant has acted in one or more of the ways alleged by the person making the application.
The court also needs to be satisfied that the defendant having acted in such a way makes it necessary to make a SHPO for the purpose of protecting the public or any particular members of the public from sexual harm from the defendant or protecting children or vulnerable adults generally, or any particular children or vulnerable adults from sexual harm from the defendant outside the United Kingdom.
The same standard of proof also applies to Sexual Risk Orders under section 122A.
Positive Obligations
Prior to the 29th November 2022 the courts could only attach ‘negative obligations’ to a SHPO or SRO. These prohibited the defendant from doing anything specified in the order.
As of 29th November 2022 the courts can impose a requirement for the defendant to do something i.e. a positive obligation. These obligations will be supervised by a specified individual or organisation. The court must receive evidence about the suitability and enforceability of such a requirement from the individual or an individual representing the organisation who is specified to supervise, except when in relation to electronic monitoring requirements.
Examples of positive obligations include requiring an individual to:
- Engage in a behaviour change programme,
- Take a polygraph test or
- Take part in an alcohol or drug treatment programme.
A defendant who is subject to a requirement imposed by a SHPO must keep in touch with the persons specified in relation to that requirement, in accordance with any instructions given by that person from time to time and notify that person of any change of the defendant’s home address.
This also applies to Sexual Risk Orders.
The Police, Crime, Sentencing and Courts Act 2022 also clarifies that the court may impose a requirement for those subject to SHPOs and SROs to wear an electronic monitoring tag.
