Sexual Risk Orders – a breach of civil liberties or necessary public protection?

20 August 2016

What is a Sexual Risk Order?

A sexual risk order is one of three new civil orders (the others being Sexual Harm Prevention Orders and Notification Orders) available under Part 2 of the Sexual Offences Act 2003 as amended by the Anti-Social Behaviour, Crime and Policing Act 2014. 

Sexual Risk Orders

A Sexual Risk Order may be made against any individual who has not been convicted or cautioned for the offence but who nevertheless is thought to pose a risk of harm to the public in the UK and/or children or vulnerable adults abroad.
An application can be made to the magistrates’ court by the Director General of the National Crime Agency (NCA), as well as a chief police officer by for an order is made by way of complaint to a magistrates’ court. This means the court will act in its civil capacity and the civil rules of evidence apply meaning hearsay is admissible  (however, the standard of proof in respect of the acts alleged remains akin to the criminal standard).

An application may only be made in relation to a single individual, even if that person may be a member of a larger group.

Interim Orders

The purpose of an interim order is to protect the public, or any particular individuals, during any period between the application for a full order and its determination. Breach of any of the prohibitions of an interim order is a criminal offence carrying the same maximum penalty as breach of a full order.
The civil preventative orders in Part 2 of the 2003 Act are public protection tools. Any interference with the respondent’s rights to liberty or private and family life (protected by Article 5 and Article 8 of the European Convention on Human Rights (ECHR)) must be necessary and proportionate to the prevention or detection of crime, the rights and freedoms of others or the protection of health or morals. The risk factor may be of such a degree as to justify an interim order application at the same time as an application for a full order, but given that an interim order will be made before the court has heard and tested all the evidence, great care must be taken to ensure that such a course of action is justified.
It is a matter for the courts to interpret whether or not it is just to make an interim order

Under what circumstances could an individual be subject to an interim/full sexual risk order?

A Sexual Risk Order may be made in respect of an individual where it is believed that the individual has done an act of a sexual nature as a result of which there is reasonable cause to believe that they pose a risk of harm to the public in the UK or children or vulnerable adults aboard. 

“Acts of a sexual nature” are not defined in legislation, and therefore their determination will depend, to a significant degree, on the individual circumstances of the behaviour, its context and possibly a pattern of behaviour.  The terms can cover a broad range of behaviour. Such behaviour may, in other circumstances and contexts, have innocent intentions. It also covers acts that may not in themselves be sexual but which have a sexual motive and/or where it is believed they are intended to allow the subject to move on to sexual abuse.

Prevention of harm

The police will need to consider the degree of risk that the individual poses at that time.  The assessment should be carried out in consultation with other relevant agencies, such as the national probation service, social services and other child protection agencies.  However, because a Sexual Risk Order may be sought in relation to a person without a previous criminal conviction, consideration may need to be given to using an external independent risk assessor.
The key factor in assessing whether a Sexual Risk Order is necessary is whether or not an individual’s actions indicate that they present a risk of harm to the public in the UK or children or vulnerable adults abroad.

What is the effect of such an order?

The purpose of an interim Sexual Risk Order is to protect the public, including children and vulnerable adults outside the UK, during any period between the making of the application for a Sexual Risk Order and its determination.
It is not necessary for the respondent to have a prior conviction or caution for a sexual offence. The court can make an order if it is satisfied that it is necessary for the purpose of protecting the public in the UK or children or vulnerable adults abroad.

The order, whether full or interim, entitles the court to prohibit the respondent from doing anything described in it. However, the order cannot require the subject to comply with conditions requiring positive action, although it does have the effect of requiring the individual to notify the police of their name and address (this information must be updated annually and whenever the information changes) while the order has effect.

The broad remit of what amounts to a ”prohibition” and lack of guidance provided, creates  the possibility for the court go beyond their powers and to either deliberately or inadvertently disguise a positive duty as a prohibition which may technically be beyond the scope of the powers intended by the Parliament. 
The minimum duration of an order is two years.  If a Sexual Risk Order contains a foreign travel restriction, that aspect may last a maximum of five years. 
Breach of full or interim order, without reasonable excuse, is a criminal offence which may be tried either summarily or on indictment with a maximum penalty on indictment of five years’ imprisonment. Breach of an order will also make the offender subject to the notification requirements i.e. inclusion on the Sex Offenders register.

What evidence is required to satisfy a court to impose such an order?
The Sexual Risk Order is a civil order, the judgment of the House of Lords in the case of McCann - R (McCann & others) v Manchester Crown Court [2002] (on anti-social behaviour orders) means that a court must apply the criminal standard and therefore be sure that the respondent has carried out the relevant act(s) before making an order.

The standard employed at this stage of the process is due to the potentially serious impact of the order and in particular, because of the consequences of breaching the order.

The next stage in deciding whether an order is necessary to protect the public from harm does not require the court to be sure to the criminal standard. This part of the decision making process was said in McCann to be an exercise of judgement or evaluation.

The court will impose prohibitions on the respondent’s behaviour.  In formulating these prohibitions, the court will be assisted by the prohibitions sought by the police in their application, but the decision is for the court as to whether the prohibition is “necessary”.

The prohibitions in the order will be tailored to the particular case and to the specific harm the respondent is assessed to pose. They could, for example, prohibit the respondent from having contact with a particular person, either in person or over the internet, or not to take a particular action which he has previously engaged in which is the subject of concern.

The prohibitions must be proportionate to the risk posed by the respondent. They should be specific wherever possible in time and place so that it is readily apparent to the respondent what does and does not constitute a breach.
All restrictions under the order must be prohibitive, i.e. they should not impose positive obligations on a person.

Can the order be challenged?

It is possible to apply to the court for an order to be varied, renewed, or discharged.

An application can be made by either the police or the respondent. The application is made to the court which made the order or to any court in the area where the applicant resides. Where the application is made by the police, it can be to any court whose area includes any part of the police area of the chief officer concerned.

Are there concerns that allowing the imposition of such an order, without any conviction, runs contrary to traditional notions of justice and the presumption of innocence?

Sexual Risk Orders are very similar to Anti-Social Behaviour Orders (ASBO’s), in that there is little restriction on the terms a court may impose, or what can be designated as an “act of a sexual nature”. 

ASBO’s were used with increasingly with low standards of evidence e.g. where for expediency, pre-prepared statements of harm were issued by a police superintendent or inspector and then used in every case, or based on uncorroborated reports of nuisance.  ASBO’s ceased, in part, because their imposition by the courts was inconsistent. 

The creation of Sexual Risk Order may potentially produce similar a result.  In essence, a sentence will be imposed before conviction, in a situation where the evidential threshold required for a conviction, has not been met.  These are by definition cases where the police and Crown Prosecution Service do not have sufficient evidence to provide a “realistic prospect of conviction”.  It effectively obtains through the back door something that could not be obtained by employing the normal standard and burden of proof which is the minimum requirement of our justice system.

The orders are, arguably, a major restriction of liberty imposed on people who have not been charged or found guilty of any offence.  Their existence challenges our understanding of what is fair and just.  The derogation from the usual standard is acceptable only when the derogation is justified.  Where it is employed we should hold the courts and applicants to account in ensuring the prohibition is limited to what is absolutely necessary in each case.  We have to strike a fair and just balance between the desire to protect the public (which we all support) and the need to protect the civil liberties of all sections of society.  Only time will tell whether Sexual Risk Orders are the right tool for this particular job.

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