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PROTECTING CHILDREN FROM SEXUAL HARM: ANALYSIS OF CONSULTATION RESPONSES

CHAPTER 5: SEXUAL OFFENCES PREVENTION ORDERS

The consultation stated:

We also propose the extension of the use of Sexual Offences Prevention Orders (SOPOs). At present the orders can be made on application by a Chief Constable in relation to a person convicted of specified offences. The orders apply for a minimum of five years and, like RSHOs, specify activities that the person concerned must not do. We propose that SOPOs should also be available for a court to impose when it sentences an offender for specified sex offences or any other offence that appears to the court to have a sexual element to it. For example, a person might be charged with and convicted of a serious assault in circumstances where the court took the view that the motive for the assault was sexual. A breach of a SOPO would be a criminal offence and be punishable with up to five years' imprisonment.

The consultation asked:

Q7: SHOULD THE USE OF SEXUAL OFFENCES PREVENTION ORDERS BE EXTENDED TO ALLOW THEM TO BE IMPOSED AT THE TIME OF SENTENCING?

Fifty seven (80%) consultees provided a response to this question. Of the 55 who provided a firm view all but one supported the extension. The remaining respondent expressed concern that those offenders considered such a high risk as to merit an order should perhaps be receiving a custodial sentence with a Sexual Offences Prevention Order (SOPO) a consideration on their release (LA).

Perceived Advantages of Imposing SOPOs at Time of Sentence

A wide range of benefits to the proposal was cited by respondents. Several felt that the sentencer would be in a better position than anyone to impose the order as they would be in possession of the necessary background information on the offender and could avoid having to view the case retrospectively after a time lapse (Leg, 2 LA). The proposal was seen as enabling courts to be proactive in restricting the activities and movements of offenders (Pol) and allowing for prompt action rather than waiting for a subsequent application for an order (Faith). Others welcomed the opportunity this would provide for the sentencer to impose conditions on an offender who may not have received probation (2 LA, Pol) and to target specific risk behaviours which may have previously resulted in a Breach of the Peace (LA).

The proposal was seen by some to potentially benefit victims and their families who they considered may feel reassured by the placement of the SOPO (Leg, Vol). It was also suggested that benefits may accrue from savings in legal aid as the imposition of the SOPO at time of sentence would, it was surmised, remove the need for separate civil legal aid application (Leg).

One respondent perceived an added benefit to be increasing the role of the Social Worker in enabling them to make recommendations for SOPOs through their Social Enquiry Reports (SERs) (LA). Others welcomed the proposal that offenders would be required to register their details with the police (LA, Vol). The measure was seen as being in line with the new Sexual Offences Act which gives the court further discretion in registering offenders who have offences which are not defined as sexual and yet have sexual elements (LA)

Perceived Disadvantages of SOPOs

The most commonly cited disadvantage to any extended application of SOPOs was the extra resource required for their effective monitoring and enforcement (2 LA, Oth Pub, 2 Vol). Indeed, one suggestion was that the police should always have some say in the conditions imposed if they are to be tasked with enforcing an offender's adherence to these conditions (LA).

One respondent cautioned that there may be problems in combining criminal and civil legislation at the time of sentencing (Oth Pub). Another requested clarification on whether criminal legal aid in respect of the substantive proceedings will continue to be made available at a hearing regarding the imposition of a SOPO despite the latter being described as a civil order (Leg).

A further, general drawback of the SOPO was viewed as the fact that as they are to be given at the time of sentencing, meaning that an individual must have already committed the offence and therefore leaving children still at risk (Oth Pub)

General Comments Regarding Extending Use of the SOPO

A recurring theme was that the proposed arrangements would involve a range of agencies in recommending the use of the SOPO and providing the sentencer with background information to support any recommendation (Oth Pub, 2 LA, Faith). It was suggested that social workers should be encouraged to consider the SOPO as a matter of routine (4 LA). One comment was for social workers to " think and propose SOPO" each and every time they write a SER on a sex offender (LA). Another consultee proposed that an emphasis be placed on sentencers to request SERs in cases where a SOPO may be considered, and obtain full background information to help them with their decision (LA).

One respondent advocated extending the 3 week time period permitted for the construction of the SER to allow for a multi-agency input (LA). Another highlighted the need for an improved risk assessment tool to advise the sentencer on options such as SOPOs or custody (LA).

Other relevant comments included the recommendation that conditions to be attached to the SOPO should include the requirement to attend for treatment to address the offending behaviour (Vol); and the call for measures to be taken to aid consistency across sentencers in the use of SOPOs and a " more uniform response" (Vol).

Clarification Sought

Clarification was sought by one respondent on whether, should relevant evidence come to light at a later date (following court sentence where a SOPO was not imposed), the police could continue to be able to make an application to the court for such an order to be considered (LA).

A final comment was that although SOPOs will fall into the enhanced disclosure category, as civil orders they would not need to be reported by Scottish Criminal Records Office under SED Circular 5/1989. The respondent recommended further consideration be given to appropriate recording and disclosure of such cases (Educ).

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