Who is it issued by and how can I contact them?
Issued by the court – contact the administering court.
Does it involve guilt?
Not necessarily. An order may be made against any ‘qualifying offender’ defined by section 106(5) as ‘a person who before or after the commencement of the Sexual Offences Act 2003 has been convicted of a Schedule 3 or Schedule 5 offence, found not guilty by insanity or disability and to have done the act charged, or cautioned of such an offence under the Act.’
An order can also be given based solely on alleged behaviour which did not result in any prosecution.
Is it recorded on the Police National Computer (PNC)?
Is it classed as a conviction?
How long will it be on my record?
It will remain on the PNC indefinitely and can still be mentioned in future criminal proceedings even after it has become spent.
When does it become spent?
After the length of the order.
When do I have to declare it?
You do not have to declare it after it is spent except for an occupation exempt from the Rehabilitation of Offenders Act, e.g. working with children. Before it is spent, you will need to declare it, when asked, to employers, insurance companies and others.
Is it disclosed on DBS checks?
Yes, it will be disclosed on both standard and enhanced checks unless it is eligible for filtering.
Once spent, it will not be disclosed on a basic check.
What guidance is there on fair process?
There is CPS Guidance on sexual offences prevention orders.
Do I have the right to appeal and what is the process?
GOV.UK information on appealing a Court decision can be found here.
What can a SOPO include?
A SOPO contains prohibitions on an individual doing any of the things stipulated. These might include having unsupervised contact with anyone under the age of 18 or being present in certain places such as schools or play parks.
Any prohibition contained needs to be justified in relation to the risk posed by the individual and must be capable of being policed effectively. A breach of any of the prohibitions in an order is a criminal offence under the Sexual Offences Act 2003 and carries a maximum penalty of 5 years imprisonment. The imposition of a SOPO also requires the named individual to comply with the notification requirements for the duration of the order.
The prohibitions contained in SOPO’s are not standard and are drafted by local police or prosecutors dealing with a case. Guidance to police and prosecutors regarding the use of SOPO’s states:-
“Care needs to be taken that the prohibitions in the order can be justified by the assessment of risk. The questions that need to be asked when considering an order are:-
- Would an order minimise the risk of harm to the public or to any particular members of the public?
- Is it proportionate?
- Can it be policed effectively?” (Hone Office 2004)
For an example of a blank SOPO template used by the Crown Court see here.
Relevant case law
The key terms within the 2003 Sexual Offences Act guidance on when SOPO’s should be made are “necessary for the purpose of protecting the public” and “serious sexual harm”.
The term “necessary” was given clarification by the Court of Appeal when dealing with a restraining order in the case of R v Halloren (2004) [EWCA Crim 233]. It was judged here that the word “necessary” imported a higher threshold than that it was merely “desirable” that an order or any prohibitions within it should be made.
The phrase “serious sexual harm” means serious physical or psychological harm caused by the potential subject of the order committing one or more of the offences listed in Schedule 3 of the Act.
Whilst no standard set of prohibitions exists, those applying for orders and drafting prohibitions should avoid terms which are unnecessarily wide since an order can involve interference with fundamental rights, significantly Article 8 of the ECHR (Right to respect for private and family life). If the necessity of an order or any of the terms within it can be brought into question, the potential for legal action to remove the order exists. This is particularly so where conditions compromise the employability of the individual or where orders have been used to circumvent the usual application procedures for search warrants.
In R v Hemsley (2010) [EWCA Crim 225], the Court of Appeal was particularly critical of the following prohibition within a SOPO
“Not to own or use any computer, electronic, magnetic or optical device which has the capability of storing, receiving or transmitting data without permitting any police constable to enter the premises upon which they are kept in order that they can examine and if necessary remove any such device for the purpose of carrying out such an examination”.
His Honour Judge Nicholas Cooke QC, describes the prohibition in the following terms:
“…an impermissible attempt to confer extensive powers of search and seizure upon the police, pursuant to a statutory provision which only enables an order preventing something from being done to be made. SOPOs should not create a situation in which police powers of search and seizure are extended with none of the procedural safeguards, which usually and importantly regulate the exercise of such powers. Further, given this Applicant’s academic and employment background the effect of this prohibition would be seriously to compromise his employability.”
Judge Cooke also regarded unnecessary those prohibitions that prevented the individual from working, volunteering, or becoming involved in any organisation where contact with children under 16 was likely. In giving his judgement he stated that the “prohibitions seek to address potential concerns which are better left to be dealt with under the Safeguarding Vulnerable Groups Act 2006, the detailed provisions of which are better suited to manage risk in a case of this type than a SOPO”.
It has also been judged in R v Hammond (2008) [EWCA Crim 1358] that the appropriate period of an order should be one equal to the length of time for which the individual is subject to the notification requirements. In some cases, a SOPO has been imposed ‘until further order’ despite the subject only being required to register with the police for a determinate period of between five to ten years. It is not known how many orders made prior to this ruling still contain prohibitions such as these. Those individuals subject to such conditions should seek legal advice from a solicitor.
A much more extensive judgement on the appropriate use of SOPOs can be found in R v Smith & Others (2011) [EWCA Crim 1772]. In summary, the Court of Appeal ruled or confirmed the following;
- SOPOs should not duplicate other regimes designed to offer public protection. For example, there is little point in making an order banning an individual from certain types of activity if such a ban is already in place as a result of the provisions of the Safeguarding Vulnerable Groups Act 2006;
- SOPOs are not generally appropriate in the cases of those subject to indeterminate sentences (Life or IPP) as the licence conditions attached to such individuals offer a much more reflexive approach to managing risk where appropriate;
- That SOPOs should run in tandem with the normal duration of the notification requirements and should not be used to extend notification requirements beyond the point normally prescribed by law (i.e. those whose sentences warrant a determinate period on the ‘register’ should not be made the subject of an indeterminate SOPO);
- Blanket prohibitions on computer or internet use are not appropriate. Rather a prohibition should prevent the subject from refusing the police access to a computer in order to inspect it upon request;
- Prohibitions on unsupervised contact with children should not be included in the case of those convicted of internet-based offences ‘just in case’ they progress to contact offences. Instead “There must be identifiable risk of contact offences before this kind of prohibition can be justified”;
- Police and prosecutors should provide a draft of a proposed order at least two days in advance of any hearing and certainly not on the day of the hearing itself.
Getting a SOPO changed or removed
It has been a common problem for individuals with convictions for sexual offences to have been made subject to a SOPO which exceeds the original intentions of the legislation which introduced the orders. For instance, a number of individuals have been sentenced to a community order for a relevant offence which would originally make them subject to the notification requirements for five years, but were also made the subject of an indeterminate SOPO. This would have the effect of extending the notification requirements beyond the normal duration (as those with a SOPO must also register with the police under the terms of the 2003 Act whilst subject to the order)
It is possible for an individual subject to a SOPO to apply to have it discharged or varied at any time. However, a Court will only have the power to discharge a SOPO totally within 5 years of it having been made with the permission of the Chief Constable/Commissioner of Police in that area. This does not however prevent the court from removing or amending the terms of the order or its duration within that period. After five years, the court does not need the consent of the police to discharge an order in its entirety.
In some cases, solicitors have been able to conduct representation regarding SOPO’s using the same legal aid certificate which related to the client at the time of their original court hearing. However, a number of individuals have successfully represented themselves at hearings in order to have their SOPO amended as appropriate. Those considering doing this should remember that the amendment of a SOPO is achieved through a court acting in a civil capacity rather than as a criminal court – therefore representing oneself is a realistic possibility and court staff should be able to advise individuals on the correct processes.
In any event, the first point of contact for seeking the amendment or discharge of an order should be the nominated Public Protection Unit police officer responsible for the supervision of each case. Whilst the permission of this officer is not required to make an application, it may be that an amendment can be achieved by mutual consent and negotiation in advance of any court hearing.
Applying to discharge a SOPO
An application would be made to the Court where the order was imposed and would need to be heard by a Judge. You would normally need to obtain permission from the Police if you wish to discharge (remove) a SOPO within 5 years of being made. After that you would not need permission. Only certain members of the Police Force or the person who is subject to the order can apply for discharge and there will usually need to be a change in circumstances to justify discharging a SOPO.
Applying to vary a SOPO
This is the most common method of challenging a SOPO. Permission is not usually required and an application would need to be made to the Court where the order was imposed and would need to be heard by a Judge.
As of March 2015, SOPO’s have been replaced by Sexual Harm Prevention Orders (SHPO) and Sexual Risk Orders (SRO).