In this article sexual offences specialist Louise Straw answers the most common question we receive in relation to sexual harm prevention orders.
What is a Sexual Harm Prevention Order?
A sexual harm prevention order (SHPO) is a stand-alone order and distinct from the Sexual Offences Notification Requirements (SONR). They are orders which can be made following conviction for certain sexual offences. They can also be made as a standalone order made following an application by the Police to a Magistrates’ Court. An application may also be made to the Magistrates’ Court if you are cautioned for certain sexual offence.
What are the conditions or prohibitions of a SHPO?
Whether on conviction or by application the order will contain a number of conditions to restrict or prohibit certain activities. Common examples include the restriction of the use of the internet, prohibiting contact with particular individuals, limiting travel or the prevention of undertaking certain types of work. One of the most common is employment where there might be contact with children or vulnerable persons.
How long does a SHPO last for?
An order will be made for a fixed period of time, which must be for at least five years, or for an indefinite period of time. The court may order that some restrictions of the order last longer than others. Any restriction on foreign travel must be reviewed every five years.
When can a Sexual Harm Prevention Order be Made?
When considering an application for an order, the court must only make the order if it considers that it is “necessary to protect the public from sexual harm”. The harm can be either physical or psychological harm. The court must also consider whether the order is proportionate, and that it can be effectively policed. The court must also be satisfied that any restrictions would minimise a risk of harm to the public.
In the past conditions had been ordered which had been wholly disproportionate and unworkable and so the Court has now to consider these additional factors.
Do the police have to prove I am guilty?
In short, the answer is no. With a standalone order the police have to simply demonstrate that “on the balance of probabilities” that the above conditions are satisfied. In order to be convicted of an offence a court must come to the conclusion that the prosecution has proved the case beyond all reasonable doubt.
What happens if people breach their Sexual Harm Prevention Orders?
Sexual harm prevention orders are not criminal convictions. However, a breach of the order is a criminal offence which is an either way offence; one that can be dealt with in either the Magistrates’ court or the Crown Court. In the Crown Court you could receive up to five years imprisonment.
Can you object to an order and can you apply to vary the order?
If the order is being made following conviction then it will be difficult to argue that it is not necessary. But you may be able to successfully argue that the restrictions sought are not proportionate.
Where there is no conviction, it is open for the defendant to challenge the application at a court hearing. In these instances, legal aid may be available.
It is also open to an individual subject to an order to apply to vary and or discharge the order. In the first instance your solicitor will make contact is made with the Force Solicitor and the supervising police officer. If the supervising police officer is supportive, then the likelihood is that the order may be varied or discharged by agreement. Any changes will still have to be approved by the Court. Legal aid is not available at this stage; however, we are able to provide further information on our fixed fees to deal with this aspect of the application.
If it can’t be dealt with by agreement , it is open to the individual to then apply to the Court. A hearing takes place and evidence is called by both parties. Legal aid may be available but if the application is unsuccessful the Force Solicitors may well seek to recover their costs.
If you are currently subject to such an order and your circumstances have changed or the order (in the case of an indefinite order)is old then please submit our contact form or alternatively contact Louise Straw directly by telephone on 0161 827 9500 or by email [email protected] and she will be happy to discuss with you the possible options available.