22. Sexual harm prevention orders
Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.
Sexual Harm Prevention Orders (SHPO) can be made in relation to a person who has been convicted, found not guilty by reason of insanity or found to be under a disability and to have done the act charged, or cautioned etc. for an offence listed in either Schedule 3 or Schedule 5 to the Sexual Offences Act 2003 either in the UK or overseas (further details below). This includes offenders whose convictions etc. pre-date the commencement of the 2003 Act.
No application is necessary for the court to make a SHPO at the point of sentence although the prosecutor may wish to invite the court to consider making an order in appropriate cases. The court may ask pre-sentence report writers to consider the suitability of a SHPO on a non-prejudicial basis.
In order to make a SHPO, the court must be satisfied that the offender presents a risk of sexual harm to the public (or particular members of the public) and that an order is necessary to protect against this risk. The details of the offence are likely to be a key factor in the court’s decision, together with the offender’s previous convictions and the assessment of risk presented by the national probation service in any pre-sentence report. The court may take into consideration the range of other options available to it in respect of protecting the public. The court may want to consider:
- Would an order minimise the risk of harm to the public or to any particular members of the public?
- Is it proportionate?
- Can it be policed effectively?
The only prohibitions which can be imposed by a SHPO are those which are necessary for the purpose of protecting the public from sexual harm from the defendant. These can, however, be wide ranging. An order may, for example, prohibit someone from undertaking certain forms of employment such as acting as a home tutor to children. It may also prohibit the offender from engaging in particular activities on the internet. The decision of the Court of Appeal in R v Smith and Others  EWCA Crim 1772 reinforces the need for the terms of a SHPO to be tailored to the exact requirements of the case. SHPOs may be used to limit and manage internet use by an offender, where it is considered proportionate and necessary to do so. The behaviour prohibited by the order might well be considered unproblematic if exhibited by another member of the public – it is the offender’s previous offending behaviour and subsequent demonstration that they may pose a risk of further such behaviour, which will make them eligible for an order.
The order may include only negative prohibitions; there is no power to impose positive obligations. The order may have effect for a fixed period (not less than five years) or until further order. Consult your legal adviser for guidance.
- possession of indecent photograph of a child – Criminal Justice Act 1988, s.160;
- sexual assault – Sexual Offences Act 2003, s.3;
- exposure – Sexual Offences Act 2003, s.66;
- voyeurism – Sexual Offences Act 2003, s.67;
- threats to kill – Offences against the Person Act 1861, s.16;
- wounding/causing grievous bodily harm – Offences against the Person Act 1861, s.20;
- assault with intent to resist arrest – Offences against the Person Act 1861, s.38;
- assault occasioning actual bodily harm – Offences against the Person Act 1861, s.47;
- burglary with intent to inflict grievous bodily harm or to do unlawful damage to a building/anything within it – Theft Act 1968, s.9;
- arson – Criminal Damage Act 1971, s.1;
- violent disorder – Public Order Act 1986, s.2;
- affray – Public Order Act 1986, s.3;
- harassment – conduct causing fear of violence – Protection from Harassment Act 1994, s.4;
- racially or religiously aggravated wounding/causing grievous bodily harm – Crime and Disorder Act 1998, s.29;
- racially or religiously aggravated assault occasioning actual bodily harm – Crime and Disorder Act 1998, s.29;
- racially or religiously aggravated common assault – Crime and Disorder Act 1998, s.29;
- racially or religiously aggravated threatening behaviour – Crime and Disorder Act 1998, s.31(1)(a);
- racially or religiously aggravated disorderly behaviour with intent to cause harassment, alarm or distress – Crime and Disorder Act 1998, s.31(1)(b);
- exploitation of prostitution – Sexual Offences Act 2003, ss.52 and 53.
Sexual Offences Act s106(14) provides that any conditions in Sch. 3 relating to the age of the offender or the victim, or the sentence imposed on the offender may be disregarded in making a Sexual Offences Prevention Order and Sexual Offences Act s103B (9) contains the same provision in respect of Sexual Harm Prevention Orders.