Sexual Harm Prevention Order (SHPO)

SHPO explained

The Court often considers the suitability of a SHPO following a conviction, but the Court can also impose a SHPO without a conviction upon a complaint by the Police or National Crime Agency with sufficient information.   

 

SHPOs are available in the Crown Court, an adult Magistrates' Court, a Youth Court or the Court of Appeal.

 

In 2015, Sexual Offences Prevention Orders (SOPO) were replaced by Sexual Harm Prevention Orders (SHPO).

 

There is a list of which sexual offences can trigger the Court to consider making a SHPO, these include offences where sexual contact has taken place but also cases where there has not, such as in the case of a person being convicted of making or possessing indecent images of children.

 

However, in order for a SHPO to be imposed, the Court must be: 

 

“satisfied that it is necessary to make a Sexual Harm Prevention Order for the purpose of… protecting the public or any particular members of the public from sexual harm from the defendant.”

 

The Sentencing Council outlines that the court may want to consider:

1. Would an order minimise the risk of harm to the public or to any particular members of the public?

2. Is it proportionate?

3. Can it be policed effectively? 

 

A SHPO is prohibitive in nature and would specify various prohibitions that are sought by the prosecution based on what they identify as being necessary. However, remember that each prohibition must be justified and can be argued in Court as being disproportionate. This is especially important as any breach of a SHPO is a criminal offence which can carry a prison sentence in the most serious cases. If you are at risk of breaching your SHPO (or an older SOPO) Contact me to get specialist advice.

 

Prohibitions

The only prohibitions which can be imposed by a SHPO are those which are necessary for the purpose of protecting the public from sexual harm from the defendant. These can, however, be wide ranging. An order may, for example, prohibit someone from undertaking certain forms of employment. It may also prohibit the offender from engaging in particular activities on the internet. SHPOs may be used to limit and manage internet use by an offender, where it is considered proportionate and necessary to do so. The order may only include negative prohibitions; there is no power to impose positive obligations.

 

Where contact with children is prohibited, it is essential to include an exemption for incidental contact such as is inherent in everyday life. In relation to offences involving indecent images the Court of Appeal has repeatedly said that conditions prohibiting contact with children should be made only on the basis of evidence to suggest progression by the defendant to contact offences.

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Prohibitions are not automatic, they should be argued before the Court to ensure they are necessary and proportionate. If you at risk of a SHPO or facing criminal charges where one may be considered Contact me to get specialist advice. 

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Examples of SHPO prohibitions

This list is non-exhaustive, and the prohibitions ordered will depend on the nature of the case before the Court.

 

Examples prohibitions can include the defendant being prohibited from:

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1. using any device capable of accessing the internet unless:

• he has notified the police VISOR team within 3 days of the acquisition of any such device;

• it has the capacity to retain and display the history of internet use, and he does not delete such history;

• They make the device available on request for inspection by a police officer, or police staff employee, and they allow such person to install risk management monitoring software if they so choose.

• This prohibition shall not apply to a computer at their place of work, Job Centre Plus, Public Library, educational establishment or other such place, provided that in relation to their place of work, within 3 days of him commencing use of such a computer, he notifies the police VISOR team of this use.​

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2. Interfering with or bypassing the normal running of any such computer monitoring software.

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3. Using or activation of any function of any software which prevents a computer or device from retaining and/or displaying the history of internet use, for example using "incognito" mode or private browsing.

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4. Using any "cloud" or similar remote storage media capable of storing digital images (other than that which is intrinsic to the operation of the device) unless, within 3 days of the creation of an account for such storage, he notifies the police of that activity, and provides access to such storage on request for inspection by a police officer or police staff employee.

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5. Possessing any device capable of storing digital images i.e. a USB stick or external hard drive unless he makes it available on request for inspection by a police officer.

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6. Installing any encryption or wiping software on any device other than that which is intrinsic to the operation of the device.

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7. Having any contact of any kind with any person they know or believe to be under the age of 18, whether directly or indirectly via social media or skype or in any other way, other than:

• such as is inadvertent and not reasonably avoidable in the course of lawful daily life, or

• with the supervision of an adult approved in advance by social services, who has knowledge of their convictions.

 

Length of a SHPO

A SHPO can be imposed for a minimum of 5 years and has no maximum length, or it can be imposed until further order. The Court may specify that some of the prohibitions have effect until further order and some for a fixed period or different periods for different prohibitions. However, indefinite orders are now carefully scrutinised. The Court of Appeal have said that a SHPO should not be made for an indefinite period unless the court was satisfied of the need to do so, and such an order should not be made without careful consideration and explanation.

 

A prohibition on foreign travel contained in a SHPO must be for a fixed period of not more than five years. The prohibition can be extended for a further period but must be for no more than five years each time. 

 

Service of a SHPO

The prosecution should serve a written draft of the order not less than two business days in advance of the hearing at which the order may be made. This is important to allow proper consideration by the defence of the proposed prohibitions and prepare legal argument to oppose unjustified prohibitions. The Court of Appeal made it clear that the terms of the SHPO must not be disproportionate nor oppressive and there must be sufficient time for both the court and the defence to properly consider the prohibitions sought.

 

A court can make an interim SHPO before the main application has been determined. Where a Court makes a SHPO in relation to a person already subject to such an order, the earlier order or interim order ceases to have effect. 

 

Defending a SHPO

In defending and representing offenders facing applications for a SHPO it is vital that the Court hears full argument and is reminded that it must be satisfied that in respect of the particular facts and circumstances of the case the order:

 

1. Is necessary

2. Is not oppressive

3. Is proportionate  

 

Helpfully the Courts have emphasised the need for the terms of an order to be effective, clear, realistic, proportionate and specific to the exact requirements of the case.

 

In respect of indecent images cases it is also helpful that as ‘non-contact’ offences they can be seen as less serious that ‘contact’ sexual offences. Therefore, it is much more important that the necessity of an SHPO is properly argued wherever appropriate.

 

As the court can only make an order where it is necessary for the protection of the public, it is often a stretch for a court to be properly satisfied where there has been no contact in the original offences that there is now a necessity of an order or an order with terms that restrict access to children or specified persons.

 

A Court of Appeal case made it clear that:

 

“Particular care must be taken when considering whether prohibitions on contact with children are really necessary…Where a defendant is convicted of viewing child pornography, then an SHPO should only contain provisions preventing contact, or permitting only supervised contact, with children where there is a real risk that the offending will progress to contact offences."

 

This area of sentencing law is complicated. In the past the courts have imposed indefinite orders where there was neither the justification nor necessity for them. These orders can now be reconsidered in light of recent decisions by the appeal courts. Contact me if you are subject to an indefinite SHPO or SOPO and wish to appeal.

 

Breach and sentencing

Breaching the prohibitions of SHPO is an offence which is triable either way. The maximum penalty for conviction on indictment is imprisonment for a term not exceeding five years, however, unless your case is very serious I would not expect an immediate custodial sentence, a community punishment or suspended sentence is a more likely outcome. 

 

It is vital that the terms of the order are complied with until such time as they are varied or removed. It is not mitigation in breach proceedings to argue that the term that was breached was later removed.

 

It is the responsibility of the CPS to prosecute the offence of Breach of a SOPO or SHPO and of any interim orders. 

 

If you have breached or are at risk of breaching your SHPO or SOPO. Contact me to get specialist advice.

 

Variations and appeals of a SHPO

A defendant can apply to vary a SHPO when it can be demonstrated there has been a change of circumstances. Where the defendant objects in principle to the terms of a SHPO imposed by the Crown Court the correct approach is an appeal.

 

If you want advice about varying or appealing an SHPO or SOPO Contact me to discuss.

 

The relationship between a SHPO and the Sex Offender Notification Rules

Unlike a SHPO which must be ordered by a Court, the sex offender notification rules (sex offenders’ register) follow automatically upon conviction for most sexual offences. The term on which the notification requirements apply depends upon the length or nature of the sentence and range from 2 years in the case of a caution to indefinitely if the sentence is imprisonment for 30 months or more. SHPOs and the notification provisions are entirely different. The first prohibit the subject from doing specified things, whilst the second requires the carrying out of certain actions.

 

A SHPO must operate in tandem with the statutory notification requirements and they should not conflict. A SHPO does not need to be of the same term length as the notification requirements.

 

For more information on the sex offenders register and the notification requirements click here.

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If you are subject to an SHPO (or an older SOPO) or facing criminal charges where one may be considered, . contact me to get specialist advice.

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