Sexual Offences Prevention Orders, Sexual Harm Prevention Orders and the case of owlett [2020] EWCA Crim 1758

Despite having existed for a number of years, the not-so-glamorous world of SOPOs and SHPOs have become a quagmire of mistakes. Many cases have appeared before the appeal courts due to:

Orders being made where the first instance court had no jurisdiction to make the order.

Orders and conditions being imposed which did not fulfil the statutory test for the imposition of such orders.

Orders being made in defective forms.

Chronology of statutes

1 May 2004 – SOPOs introduced as ancillary orders with the commencement date of Sexual Offences Act 2003.

Two main requirements for the making of a SOPO on conviction:

• Must have committed a qualifying offence under Sch 3/5 SOA 2003 or found not guilty by reason of insanity, or was under a disability but the court finds he or she did the act charged;
• The court is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant.

Between 1 May 2004 and 8 March 2015, s.104 – s.113 SOA 2003 governed the making, variation, renewals and discharges of SOPOs. The sections also dealt with interim SOPOs and appeals.

The test for the variation of orders was essentially the same for making orders i.e. further prohibitions could be added if this was necessary for the purpose of protecting the public from serious sexual harm.

8 March 2015 – SHPOs effectively replaced SOPOs for new orders that were going to be made on conviction.

The major change other than the name were the requirements for making an order on conviction:

• Must have committed a qualifying offence under Sch 3/5 SOA 2003 or found not guilty by reason of insanity, or was under a disability but the court finds that he or she did the act charged;
• the court is 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, or
  • protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

s.114 Anti-Social Behaviour, Crime and Policing Act 2014 contained transitional provisions in relation to “existing orders” (defined as, amongst other orders, a SOPO applied for prior to the commencement date of the 2014 Act). This section kept SOPOs as SOPOs, and retained the power to vary such orders with reference to the higher threshold test set out at s.108 SOA 2003.

This applied for 5 years after commencement of the SHPO regime on 8 March 2015.

8 March 2020 – All SOPOs are converted into SHPOs by operation of law. For all purposes, the existing SOPOs are treated as SHPOs, and thus variation and breaches for example, fall under the legislation relating to SHPOs.

1 December 2020 – New SHPOs made on conviction are now governed by the Sentencing Act 2020. The relevant sections are s.343 to s.358 Sentencing Act 2020 (which effectively mimics the wording of the previous relevant sections of SOA 2003).

2. Errors made

Qualifying offences not committed but SHPOs nevertheless being made – Hamer [2017] EWCA Crim 192.

Errors in the form of applications – variations of SOPOs and SHPOs can only be applied for by the Chief Constable of Police for the area in which the index offence took place or where the offender lives, or the Defendant, as per the relevant sections in the legislation – Hamer; Ashford and others [2020] EWCA Crim 673).

Other errors include: Crown Courts erroneously varying orders made in the magistrates’ court when there was no power to do so (Ashford); Courts imposing conditions which were not necessary or proportionate to the relevant circumstances of individual cases (Smith and Others[2011] EWCA Crim 1772; Parsons and another [2017] EWCA Crim 2163).

3. Tips to ensure compliance

All practitioners should check that the court has the jurisdiction to make an order with reference to Sch 3/5 of SOA 2003.

Certain offences may provide grounds for the making of a SHPO but only if the Defendant receives a certain sentence, for example convictions for indecent images of children offences under Protection of Children Act 1978 or Criminal Justice Act 1988 are only a qualifying conviction if the persons in the images are under 16 and the Defendant is over 18 or the sentence is at least 12 months’ imprisonment.

Ensure that the test is actually being applied. Is the order necessary to protect the public from sexual harm?

The Court of Appeal in several cases ^[1] has emphasised that SHPOs are serious orders placing restrictions on liberty, and that conditions needs to be sufficiently nuanced and clear to fit around the circumstances of the case.

A way to avoid both of the above issues is to ensure applications are drafted and served in advance of hearings in accordance with the Criminal Procedure Rules, with all parties able to consider and take instructions where necessary.

In breach cases, make sure the original order was correctly made and if it was not challenge it.

[1] See R v Smith and Others [2011] EWCA Crim 1772 and R v Parsons and another [2017] EWCA Crim 2163

4. Example of issues in practice – Rowlett [2020] EWCA Crim 1758

Facts and arguments

Facts: The Appellant was convicted of rape of a child under the age of 16 in 2012, and was made subject to an indefinite SOPO prohibiting him being in the company of females under 16 without parental supervision. Upon the Appellant’s release from prison in 2017, his supervising officer in the Public Protection Unit of the local police force had concerns over his behaviour and made an application for the variation of the order to include further prohibitions in spite of the fact that no new offences had been committed. At the hearing, the new conditions were agreed between the parties.

The judge “converted” the existing SOPO into a SHPO.

Defects in the application – The application was headed “Application for Variation of Sexual Offences Prevention Order”, however the legislation upon which the application was made was stated to be s.103E Sexual Offences Act 2003 as amended by s.114 Anti-Social Behaviour, Crime and Policing Act 2014 (s.103E provided for the variation of a SHPO as opposed to the variation of a SOPO which was covered by s.108 Sexual Offences Act 2003).

The statutory test for the variation of a SHPO under s.103E(5) Sexual Offences Act 2003 (the lower threshold test) was also set out at the beginning of the application.

The SHPO was made wrongly – no qualifying offence was committed to justify the making of a SHPO and the judge had no power to convert the SOPO into a SHPO as he did. The correct application would have been to vary the SOPO given the transitional arrangements in place.

Two years later, the Appellant is charged with 8 breaches of the SHPO. Trial counsel notices the error made in the varied order and appealed over 2 years out of time to the Court of Appeal.

Following the granting of leave and an extension of time, the parties agreed that the SHPO could not have been made. The question to be resolved was whether the Court on appeal could and should make a varied SOPO as the CC judge may have done in 2017 had the correct application been in front of him.

The Appellant’s argument was threefold:

• The CC had no jurisdiction to make a varied SOPO, and therefore the court on appeal could not make such an order, relying on section 11(3) Court of Appeal Act 1968, which limits the appellate court to passing a sentence or making an order “as the court below had power to pass or make”.
• If the CC did have the jurisdiction to make the varied SOPO, the Court of Appeal should not choose to make the SOPO on appeal due to the unfairness and prejudice caused to the Appellant, again relying on section 11(3), under which the appellate court “may” pass a replacement sentence or make a replacement order.
• Finally, if the court concluded it could and should make the order for the varied SOPO, this should not apply retrospectively back to the point the varied order was made in 2017, relying on section 29(4) of the 1968 Act, under which a sentence passed under section 11 shall “unless the court otherwise direct” begin to run from the time when it would have begun to run if passed in the proceedings from which the appeal lies .

Decision

The Court of Appeal agreed that the SHPO should never have been made. Therefore, the appeal was granted in this respect and the SHPO imposed in 2017 was quashed.

However, on the jurisdictional issue the Court disagreed with the Appellant’s submission that the CC had no power to make the varied SOPO on the application before the judge. They distinguished the case of Hamer on the basis that the defect in Hamer concerned the persons or parties able to make a valid application as set out in the legislation. In this case, the Court stated that an application was made by the persons entitled to make the order and given the other necessary conditions were in place to make the SOPO, the Judge in 2017 was able to make the SOPO in spite of the defective application had the parties been alive to such defects. Therefore, the Court had the ability to make the correct order on appeal.

The Court also concluded that the difference in thresholds between the variation of a SOPO and SHPO made no difference in this case given the evidence before the judge. However, the Court did conclude that the evidence only pointed towards the Appellant presenting a danger to female children rather than all children as per the 2017 order. This condition was therefore varied to reflect this. Provisos allowing for contact which is not reasonably unavoidable in the course of lawful daily life was also added to the order to make the order Smith

Finally, the COA ruled that the SOPO ordered was to run from the date that the defective order was made in 2017 on the basis of the application of the statutory assumption under s.29(4) CAA 1968 and due to the lack of prejudice caused to the Appellant given he was aware of the terms of the varied order from 2017.

John McGuinness QC
James Gwatkin

Foundry Chambers
16 February 2020