What is a Sexual Harm Prevention Order (SHPO) according to UK law?
A Sexual Harm Prevention Order (SHPO) is normally made by the court at the time when it passes sentence on an offender that has either pleaded guilty or been found guilty of a relevant sexual offence.
There is a specific list of which sexual offences can trigger the court having the discretion to make an SHPO – which includes:
- Offences where sexual contact has taken place
- 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 an SHPO to be made, 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..”
Normally, it will be for the prosecutor to serve a draft copy of the proposed SHPO on the defence and the court, in which the proposed terms would be outlined. In accordance with the Criminal Procedure Rules, the draft Order should be served on the defence and court within two days of the court then hearing the application for the order to be made.
The order is prohibitive in nature and would typically outline various conditions and prohibitions that are sought by the prosecution on the basis of what they have identified as being necessary.
In the case of Smith [2011], 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 terms sought.
The draft order should also now specify the duration of the proposed order. It is not enough to simply assert the order should be indefinite and the Court of Appeal has frequently now intervened when orders have been made on this basis.
Indeed, in the case of Pickard et al (2017), the Court of Appeal was critical of the original sentence where the order was made without notice having been given to the defence team and for an indefinite basis. In that case, the SHPO was restricted to a 10-year term on the basis that this was the length of time for which the offender was subject to reporting restrictions on the Sexual Offences Register.
In defending and representing offenders facing applications for SHPOs, it is vital that the court is reminded that it must be satisfied that – in respect of the particular facts and circumstances of the case before him or her, – the order:
- Is necessary
- Is not oppressive
- Is proportionate
Where the offences being sentenced are ‘non-contact’ – in that they do not involve the offender having direct contact with a child or ‘victim’ – such as in cases of an individual being sentenced for being in possession of or making indecent photographs, 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 leap of faith 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.
In the case of Pickard, the Court of Appeal made it clear that:
‘Particular care must be taken when considering whether prohibitions on contact with children are really necessary; although such orders may be necessary to prevent the defendant from seeking out children for sexual purposes. 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 complex and has evolved over a period of time and in the past, the courts have imposed indefinite orders where there was neither the justification nor necessity for them. In light of recent sentencing decisions by the appeal courts, there is now far greater guidance available to those defence teams that specialise in these matters.
Ironically perhaps but with good sense, the Court of Appeal in Smith (2012) concluded that where an accused has been sentenced to an indeterminate custodial sentence, it would not normally be appropriate to also impose upon the offender an SHPO.
Whilst this is not an absolute rule, the court concluded that such orders would not ordinarily be necessary and nor would they be so where they would interfere or duplicate restrictions imposed upon an offender by virtue of the Sexual Offences Notifications requirements (the ‘register’). These decisions simply go to illustrate the importance of the original sentencing court understanding and been asked to reflect on the underlying necessity and proportionality tests outlined above.
As a firm that specialises in the defence and representation of offenders accused or convicted of serious sexual offences and those involving indecent images, we do have the expertise to advise those that may be accused of sexual offences and those.
If you are subject to an SHPO (formerly SOFO) or facing criminal charges where one may be considered, contact us to discuss how we can assist when it comes to ensuring that a fair, proportionate and appropriate Order is in place. Lawtons have a long history defending these types of cases, so call today on 0333 577 0522 or make an enquiry for more information and advice.
