On 8 March 2015, the Sexual Offences Act 2003 was amended, making changes to the provisions dealing with behaviour orders to be imposed following complaint or conviction (etc.) for a sexual offence.
The following orders were repealed:
- Sexual Offences Prevention Orders (ss.104-113)
- Risk of Sexual Harm Orders (123-129)
- Foreign Travel Orders (ss.114-122)
These orders will be replaced with:
- Sexual Harm Prevention Orders (ss.103A-103K)
- Sexual Risk Orders (ss.122A-122K)
Sexual Harm Prevention Orders
This is a preventive order enabling a court to impose prohibitions on an individual where the court deals with them in respect of an offence listed in Sch.3 (sexual offences such as rape and sexual assault) or Sch.5 (other offences, such as GBH with intent and manslaughter). The order may also be made upon complaint to the magistrates’ court.
The provisions of the SHPO are very similar to its predecessor, the SOPO, however the test for imposing a post-conviction order has been lowered.
Formally, the test was that the court “is satisfied that 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”, however, under the new provisions the term “serious sexual harm” has been omitted, in favour of “sexual harm”. The new test is therefore that the court:
“is satisfied that it is necessary to make a sexual harm prevention order, for the purpose of—
(i) protecting the public or any particular members of the public from sexual harm from the defendant, or
(ii) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.”
In practice, this is likely to have little effect; the number of borderline cases where the issue is whether or not the defendant is likely to commit serious sexual harm or merely sexual harm are likely to be few.
The Foreign Travel Order has in effect been subsumed into the SHPO (see SOA 2003 s.103D) and such a prohibition will now form a part of the main order.
Sexual Risk Orders
This order is available on complaint to a magistrates’ court where the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made.
The order may prohibit the defendant from doing anything described in the order
The provisions are slightly widened in that the former Risk of Sexual Harm Order specified behaviour which the individual had to have engaged in on two occasions prior to the application (engaging in sexual activity involving a child or in the presence of a child etc.) whereas the replacement provision merely requires that the individual has “done an act of a sexual nature” giving rise to a reasonable belief an order is necessary. Again, as with the SHPO, this change is unlikely to have a profound effect.
Commencement and transition
The provisions were commenced on 8 March 2015 and from that date the repealed orders cannot be imposed, save for where an application was made prior to the repeal. The new orders can be imposed irrespective of the date of conviction. Existing orders are subject to transitional provisions and will of course continue in force as per the terms of the individual orders.