What type of restrictions can be contained in a SHPO and can the terms be negotiated pre-sentence?

Written 4th November 2021 by James Claughton

A Sexual Harm Prevention Order (SHPO) can be issued by a court pertaining to a defendant convicted of a relevant offence and deemed to be of risk of sexual harm to the public. For a court to make an individual subject to a SHPO, it needs to satisfy itself that the individual poses such a risk and that the SHPO is required to protect the public against such risk. It need not be demonstrated that the individual intends harm, just that they have previously behaved in a manner to deem a SHPO necessary to protect the public. A SHPO can be made against anyone convicted of a sexual offence or against someone whose behaviour shows that they may be a risk. SHPOs can be implemented at the time of sentencing for a relevant offence.  SHPOs are designed to protect the public in the UK and/or children or vulnerable adults abroad from individuals convicted of a sexual by setting restrictions on the conduct of the individual subject to the SHPO.

What restrictions can be included?

The restrictions can include the following: 
  • Restrictions on the places the individual can visit including places where large numbers of children are likely to be present, such as a play area in a park. 
  • Conditions not to have any contact with the victim. 
  • It may also prohibit the individual from entering any house where an under 16 is there.
  • Prohibitions on internet activity unless computer monitoring software is installed on the device. 
  • Restrictions on the individual’s ability to delete their internet history. 
  • Prohibitions on visiting leisure facilities such as swimming pools.
  • Prohibitions on attending certain locations (likely to be the location of the offending).
  • The requirement to report to a supervising officer regarding any new relationships or a relationship where that person lives with someone below 18.
  • The requirement to stay in a residence between set hours.
  • A SHPO may include restrictions on foreign travel. An individual subject to a SHPO may be prohibited from travelling abroad at all or they may be restrictions on travelling to certain countries. Foreign travel restrictions last a maximum of five years.
Prior to the SHPO being spent the individual is required to disclose it to their employer, educational provider, or insurers. The police can also attend the individual’s home address with no prior notice to ensure compliance with the order. The case in Court of Appeal in R v Smith and Others [2011] EWCA Crim 1772 demonstrated the need for the provisions of a SHPO to be proportionate to the needs of the individual case.  A SHPO cannot enforce positive obligations, such as attending sex offender courses and is limited to negative restrictions. A SHPO can have effect for a fixed period of a minimum of five years or until further order. If no fixed period is included, the order remains in application until it is appealed, discharged or a new order is implemented. If no period is set, it applies until it is appealed, discharged or a new order is made.

What criteria apply when making a SHPO?

When a SHPO is made the following criteria apply:
  • The restrictions must be necessary and proportionate and directly relevant to future risk and past offending
  • The restrictions must not unreasonably difficult to comply with and should not be restrictions which may be breached inadvertently.
  • Restrictions should relate to specific offending. Case law indicates that blanket prohibitions such as the use of devices are not proportionate.
The police consider an individual’s behaviour to be of risk of sexual harm. The police can apply to the court for a SHPO to be implemented against an individual. If the police consider you to be a risk then you should seek to obtain information regarding the reasons why. When a defendant is sentenced the judge considers whether a SHPO is required. Prior to sentencing the terms of a SHPO can be negotiated so that it is tailored to the case and the risk that individual poses.  We can initially liaise with the Crown regarding any points that we take issue with and often something can be done by agreement.   If an agreement with the Crown then representations can be made to the Court that either the order in its entirety isn’t necessary or that certain restrictions aren’t required. The Court is not bound to impose the SHPO at all, or in the terms proposed.  

Article written by James Claughton

If you wish to discuss instructing Olliers to assist in relation to issues involving SHPOs please contact Ruth Peters below. Please note we not deal with these matters on a legally aided basis and can only assist  on a privacy funded bass.
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