Multi-Agency Public Protection Arrangements (MAPPA): national guidance

Annex 6: Preventative Orders

1. There are four main types of preventative orders which are designed to minimise the risk of sexual harm to the public from certain individuals. These are:

• Sexual Offences Prevention Order (SOPO)
• Risk of Sexual Harm Order (RSHO)
• Notification Orders
• Foreign Travel Orders (FTO)

Sexual Offences Prevention Order (SOPO)

2. Section 104 of the Sexual Offences Act 2003 provides the legislative base for SOPOs. A SOPO can be made on application to a Sheriff Court by a Chief Constable. This type of SOPO is generally referred to as a Civil SOPO. The Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 amended the 2003 Act, so as to enable Court SOPOs to be made in Scotland. Scottish Court SOPOs can be imposed only if the individual had been dealt with in respect of an offence listed in paragraphs 36 to 60 of Schedule 3 to the 2003 Act.

Effects of a SOPO

3. A SOPO, whether full or interim, imposes conditions on the individual either prohibiting them from, or requiring them to do, something described in the order. These conditions must be necessary and proportionate to protect the public from serious sexual harm from the individual. As well as the SOPO requiring them to comply with prohibitions and obligations, it also renders them subject to the SONR while the order is in effect.

4. The minimum duration for a full SOPO is five years.

Basic principles in relation to a SOPO

5. There are four basic principles to be kept in mind in relation to a SOPO.

i. SOPOs can only be made against someone who is a 'qualifying offender'. A qualifying offender will have been convicted, or found not guilty by reason of insanity, or found to be under a disability and to have done the act charged, in respect of an offence listed in Schedule 3 or Schedule 5 (unless only convicted by virtue of any offence listed at paragraphs 64 to 111) to the 2003 Act. Spent convictions can be relied on by the police in applying for SOPOs.

ii. Given that the fundamental purpose of a SOPO is to protect the public from serious sexual harm, a key factor to be considered is the risk presented by the individual. Risk in this context should be evidenced and include reference to:

• the likelihood of the individual committing a sexual offence;
• the imminence of that offending; and
• the seriousness of the harm resulting from it.

To secure a SOPO, the police will need to establish that there is a reasonable cause to believe that it is necessary to protect the public, or individual members of the public, from serious sexual harm.

iii. Care needs to be taken that the prohibitions and obligations in the SOPO can be justified and evidenced by the assessment of risk. The questions that need to be asked when considering a SOPO are:

• Would it minimise the risk of harm to the public or to any particular members of the public?
• Is it proportionate?
• Can it be policed effectively?

iv. While there is a difficult balance to be struck between the rights of the individual and the need to protect the community, the need for a SOPO is dictated by the importance of protecting the public, in particular children and adults at risk. As a civil measure a SOPO enables this to be done without recourse to the criminal law. It must be remembered that the only conditions which can be imposed are those necessary for the purpose of protecting the public from serious sexual harm from the individual concerned. These can, however, be wide ranging. A SOPO may, for example, prohibit someone from undertaking certain forms of employment such as acting as a home tutor to children. It may also prohibit the individual from engaging in particular activities such as visiting chat rooms on the internet.

6. Examples of obligations might include the requirement to report to a police station more regularly than that prescribed in the 2003 Act and the regulations made thereunder, to inform the police of a change of vehicle usage or mobile telephone number or to inform the police if a person under 18 is resident in the individual's house.

7. The behaviour managed by the SOPO might well be considered unproblematic if exhibited by another member of the public - it is the individual's previous offending behaviour and, subsequent demonstration that they pose a risk of repeating such behaviour, which will make them eligible for a SOPO.

8. A SOPO or an interim SOPO is a serious matter and breach of any condition contained therein gives rise to criminal proceedings and penalties. Every effort needs to be made to ensure the individual understands this, and that they attend the hearing of the application and are given the opportunity to state their case.

9. Section 100 of the Criminal Justice and Licensing (Scotland) Act 2010 provides for SOPOs to be granted on the motion of the prosecutor. This legislative provision allows for the Crown in Scotland to apply for a SOPO at the point of conviction. In order that the conditions contained within such a SOPO motion are informed and achievable Police will request information from partners to assist in decision making.

10. Police are the decision makers in relation to seeking a SOPO, however good practice should be to provide any feedback to MAPPA partners on the application process (not the legal considerations but more generally) which may be relevant to informing and improving MAPPA risk management planning in general terms or which might inform any further specific MAPPA work with that individual. Further information on the Police process post-conviction and pre-sentencing can found in Chapter 5.

Risk of Sexual Harm Order (RSHO)

11. Section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 provides the power for the Courts to place restrictions or obligations on someone who is behaving in such a way which suggests that they pose a risk of sexual harm to a particular child (under 16) or to children (under 16) generally. The individual's behaviour need not constitute a criminal offence, and they need not have any previous convictions. The Court may impose on the individual any restrictions or obligations which are required to protect a particular child or children generally from sexual harm from that individual.

12. Where an individual has a previous conviction for crimes of a sexual nature, a SOPO should be considered rather than a RSHO.

13. Breach of a RSHO is a criminal offence and criminal procedures and penalties apply. Conviction of breaching of a RSHO also automatically renders an individual subject to the SONR.

Notification Orders

14. Section 97 of the Sexual Offences Act 2003 provides a power for the Chief Constable to apply to the Sheriff Court for an order making an individual who has been convicted, cautioned or had a relevant finding made against him, in respect of a 'relevant offence' (defined in subsection (1) of section 99 of the 2003 Act ) abroad, subject to the SONR.

15. The Chief Constable may apply for an order if the individual resides in their police area or believes that the individual is currently in or is intending to come to, their police area. A notification order might, for example, be sought in respect of a UK citizen who has been convicted of a sexual offence overseas and who is deported to the UK on release from prison abroad. The police could also apply for a notification order in respect of a foreign citizen who the police know has been convicted of a sex offence in their own country and who travels to the UK.

Foreign Travel Order (FTO)

16. Section 114 of the Sexual Offences Act 2003 provides for FTOs, which are civil, preventative orders. An FTO enables the courts to prohibit individuals who are 'qualifying offenders' (essentially, those dealt with in respect of certain sexual offences against a child under 18 (either in this country or abroad)) from travelling abroad where and so far as it is necessary to do so to protect a child or children from serious sexual harm outside the United Kingdom.

17. An FTO may be made on application by the Chief Constable to a Sheriff Court and, if made, will place a prohibition on an individual convicted of sexual offences from travelling abroad either to a named country or countries, to anywhere in the world other than a named country or to anywhere in the world. The order requires the individual to surrender their passport(s).

18. The police may apply for an FTO at the same time as a SOPO or separately.

Sexual Harm Prevention Orders and Sexual Risk Orders

19. At the time of publication of this guidance, the provisions in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 which introduced Sexual Harm Prevention Orders and Sexual Risk Orders (section 11 and section 27 respectively) had not been commenced. Once commenced, these orders will replace SOPOs, RSHOs and FTOs. The Scottish Government will produce separate guidance on these new orders.