These orders can be imposed on a defendant who is sentenced for certain offences. The list of offences which can be the trigger for an SHPO is quite broad, and includes not only sexual offences, but also many common offences of violence and theft offences, among others. However, SHPOs are usually applied for in cases of sexual offences.
It is notable that the list of offences which can form the basis of a SHPO application does not include the offence of breaching a previous SHPO: on conviction for breach of a previous SHPO there is therefore no power to make a new order, or to vary the order in force. This has been overlooked on occasion, in some cases leading to successful appeals.
A SHPO can also be made outside the sentencing process if an application is made by (or on behalf of) a chief constable or equivalent. These applications can only be made against someone who already has a conviction (or a caution, finding of doing the act, etc) for one of the same offences that could give rise to a SHPO at the time of sentence (or for an equivalent foreign offence). Unhelpfully, the power to make a SHPO on an application, and the power to make one on conviction, are now found in different statutes (the Sexual Offences Act 2003 and the Sentencing Act 2020, respectively), despite much of the law being the same.
The test which the court uses to determine whether to make an SHPO is whether an order is necessary to protect the public (either in general, or only specific portions of the public) from sexual harm from the defendant (within the UK), to protect children or vulnerable adults from the same outside the UK.
An SHPO application outside of sentence must be based on the defendant’s behaviour since they were convicted (or cautioned, etc) of the relevant offence. This means that if the prosecution mistakenly fail to apply for a SHPO during sentencing, they cannot solve this problem by just making an application to the magistrates’ court.
An SHPO can only include terms which prohibit the defendant from acting in particular ways (not positive requirements), although it is often the case that terms are framed negatively, but amount to positive requirements to act. For example, defendants convicted of online sexual offending often have SHPOs which prevent them from owning internet devices unless they make them available to the police to inspect on demand, which in practical terms is a requirement that the defendant must produce their device when asked.
Prohibitions can only be included if they are necessary to protect the public from sexual harm, the same test as applies to making the order as a whole. Therefore if an order is necessary, but some of the terms are unnecessary, those can be opposed and should be removed.
Although the statutes don’t spell out that the terms of a SHPO must be clear and proportionate, the Court of Appeal has confirmed that they must. Cases such as Smith (a case under the old regime of Sexual Offences Prevention Orders, but still of relevance) and Parsons have given important guidance on the proportionality of some common SHPO terms, including those which might amount to unreasonable restrictions on the use of modern technology. Whenever a SHPO application is being considered by a court, the defence should be alert to the risk of impractical, unreasonable or excessive terms slipping through.
SHPOs are often in practice made to last for the same length of time as the notification requirements (better known as the “sex offender’s register”), although this is not a requirement. It is important to note that notification will continue to be required for as long as a SHPO is in force, even if a shorter notification period would normally follow from whatever the substantive sentence was.
The terms of a SHPO must last for at least 5 years. If it is not thought necessary to have an order in place for that long, then it follows that a SHPO cannot be made.
It is particularly important to get the terms of a SHPO right the first time, and to ensure that they are clear to the defendant, since breach of a SHPO is an offence punishable by up to 5 years imprisonment.