SEXUAL OFFENCES PREVENTION ORDERS.
The powers of the Courts in relation to sexual offences prevention orders (‘SOPO’) are contained in ss.104 to 113 of the Sexual Offences Act 2003 (‘SOA’).
Who, When and Where?
Orders can be made in:
• The Crown Court, Magistrates Court or Youth Court upon sentencing someone for an offence contained in Schedule 3 or 5 of SOA; or
• The Magistrates upon a complaint being laid by a chief officer of police in relation to a qualifying offender.
Sections 104 –106 SOA contain all of the eligibility criteria for imposition of an order.
Note that it is not just those guilty or cautioned for a ‘sexual offence’ that are subject to the regime, Schedule 5 lists ‘other offences’, which act as a trigger to make other persons eligible to have a SOPO imposed on them. They include, murder, manslaughter, actual bodily harm, assaulting an officer preserving a wreck, carrying a firearm with criminal intent, theft, aggravated vehicle taking, hijacking, violent disorder, causing death by dangerous driving, harassment, racially aggravated assaults and genocide, amongst others!
Exceedingly Civil Proceedings.
Although they may not seem it to anyone involved in them, SOPO proceedings are ‘civil’
proceedings. The fact that they are civil proceedings has a profound effect on the evidential and procedural nature of how cases are prepared and presented. The following are the key factors to be alive to when preparing and presenting SOPO cases:
The Standard of Proof:
The Divisional Court have confirmed that SOPO proceedings are civil in nature but have stated that the bare balance of probabilities test is not the standard of proof to be applied (B v Chief Constable of the Avon and Somerset Constabulary (2001) 1 WLR 340).
• In determining whether a person has a conviction/caution for an appropriate trigger offence making them eligible for a SOPO to be imposed, a standard equivalent to the criminal standard of proof should be applied.
• In deciding whether an order is necessary to protect the public from serious sexual harm from the Respondent, the court should apply the civil standard (ie. the balance of probabilities) with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them.
The flexible civil standard can be used to the advantage of the Respondent when the Applicant is trying to prove behaviour that has not led to a criminal conviction. The more
serious and damning the allegations against your client are, the harder it should be for the Applicant to prove them.
Hearsay Evidence:
As the proceedings are civil in nature, hearsay evidence is admissible.
• The Crown Court has no set rules for the admission of hearsay evidence [but the general principles that are established in the Magistrates Courts Rules should be followed though - R v W and F (2007) 1 WLR 339].
• The Magistrates Court has statutory procedural regime for the admissibility of hearsay evidence - The Magistrates Court (Hearsay Evidence in Civil Proceedings) Rules 1999.
Is the notice served valid?
Section 3 of the rules gives a time limit for hearsay notices and sets out in detail what information the hearsay notice served by the Applicant must contain. If you consider the Applicant’s notice to be defective, tell them that you will not respond until a valid notice is served.
Do you need to make an application for witnesses to be called for cross-examination?
If a valid hearsay notice is served and you wish to challenge the hearsay evidence, make an application under section 4 of the rules for witnesses to be called for cross-examination. Note
the short time limit of 7 days to respond to a hearsay notice. The application must state why the person should be called for cross-examination.
The weight of hearsay evidence.
If the Applicant does adduce hearsay evidence it is open to the Respondent to invite the Court to attribute less weight to that evidence than it would if that evidence were not hearsay.
Section 4 of The Civil Evidence Act 1995 outlines factors the Court should have regard to when determining the weight of hearsay evidence.
Note that a failure by the Applicant to serve a hearsay notice does not affect the admissibility of the hearsay evidence but that such a failure can be relied on as a matter adversely affecting the weight to be given to the evidence (s. 2(4) Civil Evidence Act 1995).
Directions Given By the Court.
As the proceedings are civil a very different approach is required to preparation of the case.
The Court will give directions as to the filing of evidence and any other relevant matters. It is important that at the outset you know what directions you want the Court to make and that you have involvement in making the directions so that achievable deadlines are set for anything that has be filed on behalf of the Respondent.
Always file a statement from the Respondent where possible – this is rarely done and is a big mistake for three key reasons:
1. Given that they are civil proceedings the Court is within its right to say that the parties can only rely on any evidence that they serve.
2. Having a prepared statement will make the Respondent seem more like a witness and less like a defendant in a criminal trial.
3. The Court will be given a trial bundle in advance - you want them to have read the Respondent’s version of events as well as the Applicant’s before they begin the case.
In addition to seeking directions for the filing of evidence, directions for the filing of skeleton arguments are very useful – although you may think that you are creating extra work for yourself, it actually makes things a lot easier in the long run.
Expert Evidence: Risk Assessment.
Expert evidence as to the propensity of the defendant to commit further sexual offences is admissible within proceedings to assist the Court to determine whether an order is necessary to protect the public from serious sexual harm (Jones v The Greater Manchester Police Authority [2001] EWCH Admin 189). Serious sexual harm means serious physical or psychological harm.
Note that despite any similarity of working to the dangerousness provisions in s.224 – 229 of the Criminal Justice Act 2003 the Court of Appeal has held that the two regimes operate independently - thus one could be dangerous but not fulfil the criteria for a SOPO and vice
versa (see R v Rampley [2006] EWCA Crim 2203, CA and R v Richards [2006] EWCA Crim 2519, CA for the reasoning). The Court has to carry out its own risk assessment irrespective of any decisions that may have been taken upon sentencing the Respondent.
If the Applicant has expert evidence indicating the Respondent has a strong propensity to offend you have to consider how this can be challenged – most likely through cross- examination of the person who conducted the assessment, but it is always open to the Respondent to file his own expert evidence on the risk he poses.
Probably the Most Important Part – The Terms.
Each of the terms of the order have to be “necessary”. Even if the Respondent has a very weak case, do not just submit to the order without considering whether the terms sought are appropriate.
When looking at the terms of the order being sought have the following in mind:
Do all of the terms make sense?
Complex terms should be avoided – clear, simple English is required.
Do the terms actually target the behaviour that the police have proved has been occurring?
The terms need to be behaviour specific connected to potential sexual offending and the Respondent’s actual behaviour.
Are the terms proportionate?
The terms should do no more than is necessary to control the Respondent’s behaviour and protect victims. There is a balance to be drawn between the level of protection required and the restriction of liberty placed on the Respondent.
Do the terms actually restrict the Respondent’s behaviour in a way such as to prevent a sexual offence occurring as opposed to punishing him for committing a further offence?
A term that specifically prevents behaviour that is a criminal offence, this should not generally occur if the penalty for the criminal offence itself would be deterrent and sanction enough.
Do the terms impinge on the Respondent’s right to a family life?
This question is usually most pertinent in relation to Respondent’s who have been convicted of crimes in relation to children and who have children of their own or other close family members who are children. Orders may need to make provision for the family courts to decide whether the Respondent can have contact with specific children (see R v D (2006) 1 WLR 1088 for discussion on how to protect children of a defendant).
Remember that the terms of the order can be varied…
Very wide general terms should be avoided – if the Applicant tries to argue that specific terms would allow the Respondent to modify his behaviour and exploit loopholes point out to them that they do have the power to apply to vary the terms of the order in the future if required.
