Sexual Harm Prevention Orders (SHPOs) on conviction
Part 11 of the Sentencing Act 2020 (‘the Act’) introduced and modified a variety of orders available to the Courts to deal with offenders’ behaviour. Sexual Harm Prevention Orders (‘SHPO’) are one such order.
What is ‘sexual harm’?
The term ‘sexual harm’ means physical or psychological harm caused by the offender committing any of the offences listed at Schedule 3 of the Sexual Offences Act 2003 (‘SOA’).[1] Rape, sexual assault, and possession of indecent images of children (among many others) are all offences listed in Schedule 3 which can attract a SHPO on sentence. The offences listed at Schedule 5 of the SOA (which are not per se sexual in nature, and so require consideration of the context in which they were committed) can also attract a SHPO post-conviction.[2]
What are the grounds for making an SHPO?
If the offence is listed in either of the schedules of the SOA (see above), then the Court can make the SHPO if it is satisfied that it is necessary to do so for protecting the public, or specific members of the public, from sexual harm from the offender.[3]
What will an SHPO prohibit me from doing?
It is usually the police/CPS that will draft the suggested conditions (or prohibitions) when applying for the SHPO. The Act does not specify what prohibitions an SHPO can/should include, but only those necessary for the purpose of protecting the public can be included.[4]
An SHPO can prohibit foreign travel, although such a prohibition cannot exceed five years at a time. Examples of other conditions are:
- Not to be in the company of any person under the age of 18, who is not part of your household, unless with the informed consent of their parent or guardian;
- Not to use an internet-connected device without express permission from the police; and,
- Not to use any social networking sites or instant messaging applications without first providing the username and password to the police.
The actual prohibitions will be case-specific and aimed at dealing with the type of offending charged.
[3] Per the statutory test at s. 346.
It is important to consider the draft prohibitions closely to ensure they meet the statutory ‘public protection’ test and are not oppressive.
How long does an SHPO last?
The minimum duration of a SHPO is 5 years. They can be indefinite.[5] Different acts prohibited by the SHPO may have different operative periods. In other words, the prohibitions do not all need to have the same expiry date.
What happens if I breach an SHPO
Breaching an SHPO without reasonable excuse is a criminal offence.[6] Committing the offence can lead to 6 months’ imprisonment on summary conviction, and 5 years on indictment.
Can I change or appeal an SHPO?
An SHPO can be varied, renewed, or discharged on the application of the offender or the police.[7] An offender can appeal an SHPO to the Court of Appeal (if the SHPO was made in the Crown Court), or to the Crown Court in all other cases.[8]
Can a SHPO be made without a conviction?
Yes. There are different legal bases for making an SHPO, depending on whether the order is made following a conviction or not. If the SHPO is made otherwise than in connection with a conviction, then the SOA applies. If an SHPO is made on conviction, then the Act applies.
An SHPO can be made without conviction in relation to three types of defendant:
- Those found not guilty by reason of insanity;[9]
- Defendants who are unfit to plead, but found to have done the act charged;[10] and/or,
- On the application of the police for ‘qualifying offenders’.[11]
[5] Sentencing Act 2020, s. 347(2)
[9] Section 103A(2)(ii), SOA
[10] Section 103A(2)(iii), SOA
[11] As defined at s. 103B, SOA
[12] C.f. ss. 103A-K, SOA and ss. 343 – 358 of the Act
It is subject to effectively the same tests as a post-conviction SHPO described above.[12]
If you are in need of advice or assistance in relation to an SHPO or other applications for Court Orders, please contact our Crime and Regulatory Team: