Section 174: Standard of proof
On 29th November 2022, section 174 of the Police, Crime, Sentencing and Courts Act 2022 came into force, making a substantial legal change concerning the making of Sexual Harm Prevention Orders.
Section 174 amends sections 103A(3) and 122A(6) of the 2003 Act to provide that the court when considering an application for a SHPO and SRO respectively should apply the civil standard of proof (‘balance of probabilities’), rather than the criminal standard of proof, when determining whether the individual the application is made in respect of has done the act of a sexual nature specified in the application.
This amendment brings these orders in line with other civil orders, for example Domestic Abuse Protection Orders as introduced by the Domestic Abuse Act 2021.
Further changes were made by sections 175 and 176 of the Act.
Section 175: Sexual harm prevention orders: power to impose positive requirements
Sections 103A to 103K of the Sexual Offences Act 2003, provide a route via an application to the court for a chief officer of police or the Director General of the National Crime Agency to obtain a SHPO in respect of a qualifying offender who has since acted in such a way as to give reasonable cause to believe it is necessary for such an order to be made.
These orders currently place a range of restrictions, or negative requirements, on individuals depending on the nature of the case. These can include restrictions on contact with specific persons and restrictions on travel.
This section amends the 2003 Act and the Code to enable the courts to impose positive obligations as conditions of an SHPO. Positive obligations allow the courts to require individuals made subject to an order to engage in specified activity. This can include a requirement to attend a behaviour change programme, alcohol or drug treatment, or to take a polygraph test. Enabling the courts to impose positive obligations as well as restrictions will strengthen the management of those who pose a risk of sexual harm and increase prevention through rehabilitation.
Subsections (5) and (11) amend section 350 of the Code and section 103E of the 2003 Act respectively to enable an SHPO to be renewed or varied so as to include additional positive obligations (for example, where an individual’s circumstances have changed).
Subsection (12) amends section 103F(3) of the 2003 Act to enable the court to impose positive obligations in interim SHPOs.
Subsection (13) amends section 103I of the 2003 Act, the effect of which is to make a failure to comply with a positive obligation without reasonable excuse a criminal offence, in line with the current provisions on breaching negative obligations, a conviction for which is punishable by up to five years’ imprisonment.
Section 176: Sexual risk orders: power to impose positive requirements
This section makes equivalent amendments to the provisions of the 2003 Act relating to SROs to those made by section 175 in relation to SHPOs to enable the courts to impose positive obligations as conditions of an SRO.
This can include a requirement to attend a behaviour change programme, alcohol or drug treatment, or to taking a polygraph test. Subsection (6) amends section 122H of the 2003 Act, the effect of which is to make a failure to comply with a positive obligation without reasonable excuse a criminal offence, in line with the current provisions on breaching negative obligations. A conviction for a breach is punishable by up to five years’ imprisonment and that individual becoming subject to the notification requirements for sex offenders.
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