Sexual Offences Act 2003 s 104
Sexual Offences Prevention Orders (imposed post-conviction) are designed to protect the public from serious sexual harm occasioned by the offender. It is now relatively well settled as to what ‘serious sexual harm’ and ‘protecting the public’ mean. Appeals founded on the grounds that the judge was wrong to determine such an order was necessary have reduced in number as the courts and advocates have become more familiar with SOPOs.
In 2011, the guideline case of R v Smith and Others laid down the basic principles in relation to SOPOs, stating that the two key tests were necessity and clarity, with a subtest being proportionality. It dealt with how the orders should interact (or not) with other rules and regimes applicable to such defendants, the primary example being notification requirements.
Why then, are there still a relatively high number of appeals concerning terms contained within SOPOs?
One major problem that still persists with SOPOs concerns the wording of the orders.
It is well settled that they should be drafted by counsel, (see R v Guest 2011 EWCA Crim 1542). On numerous occasions, the Court of Appeal had said that SOPOs should be expressed in clear, easily understood language. The reasons are axiomatic; the offender must be able to understand the terms and legalese is inappropriate and unnecessary. Such a proposition should not be news to practitioners. Yet many orders still come before the Court of Appeal with convoluted language to express what should be (and are, in most cases) quite simple prohibitions.
So, there is pointer number one. Have that in the forefront of your mind when considering your client’s SOPO, or fear a rebuke from their Lordships. Here are a couple more:
Second is to take time to consider the order. It might be unpopular (“Im sure we can deal with this today Miss Smith…”) but it is the right thing to do. In such circumstances, throw R v Buchanan 2010 EWCA Crim 1316 their way: “If there is insufficient time for counsel and the defendant to consider the contents or terms of…a proposed order an application should be made to the sentencing judge for the hearing to be put back. These issues should not be dealt with on the fly and due to the number of issues which must be considered, time is needed to ensure that mistakes are not made.
Ensure that your mind is alive to inadvertent breaches. When thinking of 100 other issues, it might be easy to overlook that ‘must not unsupervised contact with any female under the age of 16’ would criminalise standing at a bus stop where a school child is waiting for a bus. Similarly, prohibitions which state that offenders must not use any equipment to capture or store images of females under the age of 16 would prevent a grandparent from receiving an electronic copy of a school picture for example. Avoiding inadvertent breaches seems like common sense – and largely it is – but one must be alert to a multiplicity of issues, which is why it is vital counsel have time to consider the prohibitions.
Linked to the issue of inadvertent breaches is the necessary consideration of child family members. Practitioners should of course be mindful to the fact that a SOPO may unwittingly prevent a parent, grand parent, uncle or cousin from being in their own home, or a family member’s home, when children are present.
There are forms of words which can deal with problems like inadvertent breaches, child family members and the like, but copying and pasting terms from previous orders is dangerous. Whilst the Court of Appeal have in the past done just that – approved and used SOPO terms from previous cases – one must consider the requirement that a SOPO’s terms should be tailored to the individual to whom the order relates, his or her specific personal circumstances and the risk from the which the public is hopefully going to be protected,. Therefore, copying and pasting terms has its inherent dangers. Conversely, drafting terms completely afresh risks the dangers outlined above. If copying and pasting previously used terms, such as those discussed in Smith, then it will be imperative that counsel is mindful that each term is appropriate and necessary for that particular offender.