Helen Easterbrook considers the ‘Pitfalls when drafting and agreeing SHPO's?’
30 November 2021
I'm not sure what is driving it, but I have recently seen a number of sexual harm prevention orders that include prohibitions on travelling outside England & Wales without first informing the police. On the face of it, faced with an offender who has groomed children online with a view to meeting and abusing them this can seem like an entirely sensible proposal. Where it can become problematic though is in the drafting.
SHPOs can, in broad terms, be ordered under s.345 of the Sentencing Act 2020 where someone is convicted of an offense listed in Schedule 3 or Schedule 5 of the Sexual Offences Act 2003 (SOA), or under s.103A SOA if found either not guilty by reason of insanity, or to be under a disability and to have done the act alleged. S.347 and s.103C respectively require that the prohibitions in an order are either for a fixed period of no less than five years, or are set for an indefinite period. Each individual prohibition can have its own time period.
When it comes to prohibitions on foreign travel though the position is a little bit different. Here s.348 and s.103D specify that any such prohibition must be for a fixed period of not more than five years, with each allowing for extensions of five years at a time. Clearly this will cause difficulties when orders as a whole are passed for a period of more than five years, or indeed when passed “until further notice”.
On the subject of “until further notice” or indefinite orders, it is worth remembering too that s.352 and s.103 G both operate so as to extend notification periods to the end of any SHPO imposed meaning this needs to be carefully considered (R v McLellen  EWCA Crim 1464) before asking for, or agreeing to, an order in these terms.
Helen Easterbrook is a barrister at Drystone Chambers.