A of 8/3/15 the Anti-social Behaviour, Crime and Policing Act 2014, Section 2SHPO have amended the Sexual Offences Act 2003 by bringing into operation SHPO’s (Sexual Harm Prevention Orders) and repealing their predecessors called SOPO’s to the extent that they applied to England and Wales as SOPO’S still remain in force in Scotland and Northern Ireland. SHPO’s orders are aiming at stopping sexually offending conduct which may arise in in the future from persons who are considered high risk offenders. Since sexually related offenses have been linked with a likelihood of recidivism, such orders aim at preventing further sexual harm, including psychological harm, though these come at a huge costs on the persons they are imposed on as they may strongly interfere with their right to respect for private and family life of the European Convention of Human Rights and thus are have been criticized for that.
SHPO are issued in two circumstances:
The first is when a Court the court deals with a person who has been found guilty of an offence (i) an offence listed in Schedule 3 or 5, or (ii) a finding that the defendant is not guilty of an offence listed in Schedule 3 or 5 by reason of insanity, or (iii)a finding that the defendant is under a disability and has done the act charged against the defendant in respect of an offence listed in Schedule 3 or 5 and the Court decides that there is a necessity to make such an order (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. The Act and several case law stress the only prohibitions that may be included in a sexual harm prevention order are those necessary for the protection of the above person or class of persons.
The second way such an order is issued is upon an application by a chief officer of police or the Director General of the National Crime Agency to a magistrate’s court when the person concerned is a qualifying offender has since the appropriate date acted ins such a way as to give reasonable cause to believe that it is necessary for such an order to be made.
Under the definition of “qualifying offender” includes a person who was cautioned of a relevant offence listed or referred to in the Act thus reflecting its seriousness in preventing future sexual crimes.
Such orders run for a minimum 5 year period or even indefinitely (with the exception of travel bans being a 5 year maximum period) and prohibit the defendant from doing anything described in the order. Since their coming into operation SHPO have been protecting the public or members of the public from sexual harm as opposed to serious harm which their predecessors SOPOS (Sexual Offences Prevention Orders). SHPO are in force in England and Wales whereas In Scotland and Ireland still use SOPOS. Another change worth mentioning in SHPO is that a child is a person under the age of 18 while under SOPO’s it was under 16.
The civil procedure is used for the imposition of these orders as much as it was used for SOPO’s, with the exception that the standard of proof being the criminal one, beyond reasonable doubt. The demand for this high standard of proof is owing to the fact that these orders are not typical restraining orders unlike typical restraining order, are much more oppressive as it has often been critised as constituting punishment, when in fact the person in question has already been convicted of the offense in relation to which they apply on them or never been found guilty and yet finding themselves socially isolated and sidelined by society through these orders as their breach carries up to a maximum 5 year prison sentence. Their proponents argue for them as being successful means in controlling the occurrence of future sexual crime, in a more than never before, failing criminal justice system.
