ANNEX 7: CIVIL ORDERS
1 There are four main types of civil orders which are designed to minimise the risk of sexual harm to the public from offenders. These are:
- Sexual Offences Prevention Orders ( SOPOs)
- Risk of Sexual Harm Orders ( RSHOs)
- Notification Orders
- Foreign Travel Orders ( FTO)
2 Section 104 of the Sexual Offences Act 2003 provides the legislative base for SOPOs. A SOPO can be made on application to a Sheriff Court by a Chief Constable. This type of SOPO is generally referred to as a Police SOPO. The Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 amended the 2003 Act, so as to enable Court SOPOs to be made in Scotland. Scottish Court SOPOs can be imposed only if the offender had been dealt with in respect of an offence listed in paragraphs 36 to 60 of Schedule 3 to the 2003 Act.
Effect of a SOPO
3 A SOPO, whether full or interim, imposes conditions on the offender either prohibiting them from, or requiring them to do, something described in the order. These conditions must be necessary and proportionate to protect the public from serious sexual harm from the offender. As well as the SOPO requiring the offender to comply with prohibitions and obligations, it also renders them subject to the SONR while the order is in effect.
4 The minimum duration for a full order is five years.
Basic principles for SOPOs
5 There are four basic principles to be kept in mind in relation to SOPOs:
i. SOPOs can only be made against someone who is a 'qualifying offender'. A qualifying offender will have been convicted, or found not guilty by reason of insanity, or found to be under a disability and to have done the act charged, in respect of an offence listed in Schedule 3 or Schedule 5 (unless only convicted by virtue of any offence listed at paragraphs 64 to 111) to the 2003 Act. Of course, spent convictions can be relied on by the police in applying for SOPOs.
ii. Given that the fundamental purpose of a SOPO is to protect the public from serious sexual harm, a key factor to be considered is the risk presented by the person. Risk in this context should include reference to:
- the likelihood of the offender committing a sexual offence;
- the imminence of that offending; and
- the seriousness of the harm resulting from it.
To secure a SOPO, the police will need to establish that there is a reasonable cause to believe that it is necessary to protect the public, or individual members of the public, from serious sexual harm;
iii. Care needs to be taken that the prohibitions and obligations in the SOPO can be justified by the assessment of risk. The questions that need to be asked when considering a SOPO are:
- Would it minimise the risk of harm to the public or to any particular members of the public?
- Is it proportionate?
- Can it be policed effectively?
iv. While there is a difficult balance to be struck between the rights of the offender and the need to protect the community, the need for SOPOs is dictated by the importance of protecting the public, in particular children and adults at risk. As a civil measure, SOPOs enable this to be done without recourse to the criminal law. It must be remembered that the only conditions which can be imposed are those necessary for the purpose of protecting the public from serious sexual harm from the offender. These can, however, be wide ranging. A SOPO 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 such as visiting chat rooms on the Internet.
6 Examples of obligations might include the requirement to report to a police station more regularly than that prescribed in the 2003 Act and the regulations made thereunder; to inform the police of a change of vehicle usage or mobile telephone number or to inform the police if a person under 18 is resident in the offender's house.
7 The behaviour managed by the SOPO 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 repeating such behaviour, which will make them eligible for a SOPO.
8 A SOPO or an interim SOPO is a serious matter and breach of any condition contained therein gives rise to criminal proceedings and penalties. Every effort needs to be made to ensure the offender understands this, and that they attend the hearing of the application and are given the opportunity to state their case.
9 Section 100 of the Criminal Justice and Licensing (Scotland) Act 2010 provides for SOPOs to be granted on the motion of the prosecutor. This legislative provision allows for the Crown in Scotland to apply for a SOPO at the point of conviction. In order that the conditions contained within such a SOPO motion are informed and achievable it is considered best practice for MAPPA partners to be involved in the decision making processes to address the offenders future conduct.
10 Non-statutory guidance in relation to SOPOs will shortly be available on the Scottish Government website.
11 Section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 provides the power for the Courts to place restrictions or obligations on someone who is behaving in such a way which suggest that they pose a risk of sexual harm to a particular child (under 18) or to children (under 18) generally. The person's behaviour need not constitute a criminal offence, and they need not have any previous convictions. The Court may impose on the person any restrictions or obligations which are required to protect a particular child or children generally from sexual harm from that person.
12 Where a person has a previous conviction for crimes of a sexual nature, a SOPO should be considered rather than a RSHO.
13 Breach of a RSHO is a criminal offence and criminal procedures and penalties apply. The breach of an RSHO also automatically renders an individual subject to the SONR.
14 Section 97 of the Sexual Offences Act 2003 provides a power for the Chief Constable to apply to the Sheriff Court for an order making an offender who has been convicted, cautioned or had a relevant finding made against him, in respect of a 'relevant offence' ( defined in subsection (1) of section 99) abroad, subject to the SONR.
15 The Chief Constable may apply for an order if the offender resides in their police area or believes that the person is currently in or is intending to come to, his/her police area. A notification order might, for example, be sought in respect of a UK citizen who has been convicted of a sexual offence overseas and who is deported to the UK on release from prison abroad. The police could also apply for a notification order in respect of a foreign citizen who the police know has been convicted of a sex offence in his or her own country and who comes to the UK.
16 Section 114 of the Sexual Offences Act 2003 provides for FTO, which are civil, preventative orders. A FTO enables the courts to prohibit persons who are 'qualifying offenders' (essentially, those dealt with in respect of certain sexual offences against a child under 18 (either in this country or abroad)) from travelling abroad where and so far as it is necessary to do so to protect a child or children from serious sexual harm outside the United Kingdom.
17 A FTO may be made on application by the Chief Constable to a Sheriff Court and, if made, will place a prohibition on a sex offender from travelling abroad either to a named country or countries, to anywhere in the world other than a named country or to anywhere in the world. The order requires the offender to surrender his or her passport.
18 The police may apply for a FTO at the same time as a SOPO or separately.