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Aim of this information
This information is designed to provide specific information around convictions for sexual offences in particular, notification requirements and civil orders which may run alongside a caution or a conviction or can be given as a stand alone order.
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Why is this important?
There are many misconceptions about convictions for sexual offences and its important that anybody with this type of offence is clear about:-
- When their convictions become spent under the Rehabilitation of Offenders Act and what they are legally required to disclose to employers, insurers etc.
- The impact of the Sex Offenders Register (SOR) and any civil order on rehabilitation periods.
This document gives an overview of the relevant legislation relating to those with convictions for sexual offences. There are separate documents available specifically on barring.
The Rehabilitation of Offenders Act 1974
Sexual offences can become spent under the Rehabilitation of Offenders Act in the same way as any other conviction. It depends on the sentence that was received. For more information on the ROA, click here.
The ROA and the notification requirements
It’s important to note that the length of time it takes for a conviction to become spent is usually different to how long you may be subject to the notification requirements (see below). As a result, it is possible for a conviction to be ‘spent’ under the ROA, but you will still be subject to the notification requirements.
The ROA and SOPO’s and SHPO’s
The view of the Ministry of Justice is that SOPO’s and SHPO’s fall within the definition in the ROA of an “order that imposes a prohibition”, so the rehabilitation period ends on the date when the prohibition ceases to have effect. This will depend on the length of the SOPO/SHPO. This means that a conviction cannot become spent until the SOPO/SHPO that relates to that conviction ends. It follows that if a SOPO/SHPO is imposed for an indefinite period then it will be subject to disclosure indefinitely, until the SOPO/SHPO is ended in some other way (e.g. going back to court to get the end date amended).
On licence for a sex offence
If you have been released on licence it means that you will serve the rest of your sentence in the community.
Your licence gives specific instructions on what you must do and the conditions that you must follow.
- You may be taken back to prison if you do not follow the rules.
- This may be because you offend again or break some other conditions; this is called a Breach of Licence.
If your name is on the sex offenders register indefinitely, you can apply to the police to have your name removed after 15 years on licence. (Please see Indefinite Notifications)
For more information and advice about being on licence for a sex offence, the Prison Reform Trust have published a useful leaflet.
What the requirements are
The notification requirements for those convicted or cautioned for sexual offences (commonly referred to as the ‘sex offenders register’) were initially introduced to England, Wales, Scotland and Northern Ireland as part of the Sex Offenders Act 1997. This system, which applied retrospectively, was amended under Part 2 of the Sexual Offences Act 2003 meaning that relevant offenders were required to notify certain personal details to the police in their area. These included:
- Name and any aliases;
- Date of birth;
- National Insurance number;
- Main address and any addresses at which they reside for more than 7 days in 12 months;
- Foreign travel plans of three days duration or more
- Any changes to the above details.
However, under the Sexual Offences Act 2003 (Notification Requirements) (England & Wales) Regulations 2012, since the August 2012 those subject to notification requirements are also required to:
- Notify the police of all foreign travel (including any period of less than three days);
- Notify weekly where they are not registered as regularly residing or staying at one place (i.e. where a registered sex offender has no sole or main residence and instead must notify the police of the place where he can regularly be found);
- Notify where they are living in a household with a child under the age of 18. Under the changes, those subject to the notification requirements will be required to notify when residing or staying in a relevant household for a period of at least 12 hours with a child who is under the age of 18;
- Notify bank account and credit card details (changes must be notified within 3 days). This has been explained by the Home Office as being necessary to tackle Internet child pornography. Whilst the legislation requires notification of bank accounts, credit and debit cards held by the offender or jointly, it does not require details of accounts, credit or debit cards held independently by family members to be provided.
- Notify information about their passports or other identity documents at each notification. This provision has been put in place purportedly to stop individuals from seeking to avoid being on the register when they change their name.
These details must be provided in person at a nominated police station within 3 days of the conviction or caution and must be updated on an annual basis. For a list of the police stations which can accept notifications, click here. Individuals subject to the requirements are also routinely photographed when making a notification. Failure to comply with the notification requirements is a criminal offence punishable by up to 5 years imprisonment.
The information about an offender’s bank account is held securely and possessed by the police. However they are not entitled to examine the details of the account transactions. Access to bank accounts and transactions is not ordinarily permitted without the intervention of a court order.
In September 2013, a claimant sought a declaration that this particular regulation goes against Article 8 of the European Convention on Human Rights and his right to private life. The Court decided that although this did amount to an interference with the claimant’s privacy, this was justified by allowing the police the ability to trace an offender quickly and guard against the risk of an offender using another identity. For more information on this issue please see the following link.
In every year between 2006/07 and 2012/13, over 1,000 individuals per year have been cautioned or convicted for breaches to the notification requirements
These requirements are reflected in updated guidance published by the Home Office, which provides useful and detailed information about how these requirements work in practice.
How long the requirements last for
The length of time to which individuals are subject to the notification requirements is based upon the sentence received (finite notification periods are halved if the person is under 18 when convicted or cautioned):
Notification requirements for extended sentences
Individuals subject to an extended sentence should be aware that the notification period is calculated by using the whole term of the sentence. For instance, if sentenced to four months plus a four month extended supervision period the whole term would be eight months. The resultant notification period would therefore be 10 years rather than 7 years which would have resulted from a four month custodial sentence. For a fuller explanation from the Home Office, click here.
In April 2010, the UK Supreme Court ruled that indefinite notification periods were incompatible with Article 8 of the European Convention on Human Rights (Right to respect for private and family life) because they do not contain any mechanism for the review of the justification for continuing the requirements in individual cases. This effectively means that those currently subject to lifetime registration should have the right to an appeal where they will have the opportunity to demonstrate that their risk has been minimised to a degree that it is no longer necessary for them to be subject to the notification requirements. For further information on this ruling see the full judgement or the press summary.
As a result of this case, the Sexual Offences Act 2003 (Remedial) Order 2012 came into force on 30 July 2012 and allows individuals who are subject to indefinite notification requirements the opportunity to apply to the police for a review of this requirement, after a fixed period of time has elapsed. The review would be carried out by the police on the basis of a range of factors, including information provided from the Responsible Authority and Duty to Co-operate agencies which operate within the Multi-Agency Public Protection Arrangements (MAPPA) framework (under section 325 of the Criminal Justice Act 2003).
Detailed guidance has been produced by the Home Office, particularly aimed at police forces, and is available to download here.
The review of indefinite notifications started in September 2012. This allows those subject to indefinite notification requirements to submit an application to review.
To try and find out how the Police were dealing with these, we made a Freedom of Information application to Kent Police. The response that we received is copied below.
“Since September 2012, Kent Police has received 9 applications, of which 6 were granted and 3 were declined.
For each of the 6 successful applicants, it was established that the level of risk posed by the individual had reduced to such a level that no beneficial purpose would be served by continued registration. This was found not to be the case for three applications that were declined.”
Visits from the police
Whilst an individual subject to the notification requirements does not legally have to permit the police to enter their property when a visit is conducted, such behaviour is likely to prompt concern and will make the risk assessment process more complicated for the police.
Section 58 of the 2006 Violent Crime Reduction Act, amended the 2003 Sexual Offence Act to give police the power of entry and search the home address of a registered sexual offender where at least two previous attempts to gain entry had been unsuccessful. This means that if police are refused entry for the purpose of conducting a risk assessment under MAPPA, they can apply for a search warrant to a local magistrate. It is therefore advisable for those subject to the notification requirements to co-operate fully with these visits and to use them as an opportunity to seek advice or information on any relevant issues from their designated PPU officer.
The frequency of visits will generally be determined by the perceived risk level of the individual in question with lower risk cases being visited on an annual basis and the very highest risk cases on a monthly basis.
Violent and Sex Offenders Register (ViSOR)
ViSOR (the Violent and Sex Offenders Register) is a shared access database of records of those subject to the notification requirements under the Sexual Offences Act 2003, those imprisoned for more than 12 months for violent offences, and unconvicted people simply thought to be at risk of offending. ViSOR can be accessed by the police, probation and prison service personnel. Private companies running prisons are also granted access.
On the 8th May 2015, the Sexual Offences Act 2003 was amended, making changes to the provisions dealing with behaviour orders to be imposed following complaint or conviction (etc) for a sexual offence.
The following orders were repealed at that time:-
- Sexual Offences Prevention Orders
- Risk of Sexual Harm Orders
- Foreign Travel Orders
The above were replaced with:-
- Sexual Harm Prevention Orders
- Sexual Risk Orders
Sexual Offences Prevention Order (SOPO)
Until March 2015, a Sexual Offences Prevention Order (SOPO) was a civil order created by the Sexual Offences Act 2003 to replace Restraining Orders and Sex Offender Orders available through the Sex Offenders Act 1997.
Further information about SOPO’s can be found here.
Sexual Harm Prevention Order (SHPO)
A Sexual Harm Prevention Order is a preventive order enabling a court to impose prohibitions on an individual who has been “convicted, found not guilty be reason of insanity or found to be under a disability and to have done the act charged, or cautioned etc for an offence listed in either Schedule 3 or Schedule 5 of the Sexual Offences Act 2003 either in the UK or overseas”. This includes offenders whose convictions etc pre-date the commencement of the 2003 Act.
No application is necessary for the court to make a SHPO at the point of sentence although the prosecutor may wish to invite the court to consider making an order in appropriate cases. The court may ask pre-sentence report writers to consider the suitability of a SHPO on a non-prejudicial basis. In order to make a SHPO, the court must be satisfied that the individual presents a risk of sexual harm to the public (or particular members of the public) and that an order is necessary to protect against this risk.
The details of the offence are likely to be a key factor in the courts decision, together with the individuals previous convictions and the assessment of risk presented by the National Probation Service in any pre-sentence report. The court may take into consideration the range of other options available to it in respect of protecting the public. The court may want to consider:-
- Would an order minimise the risk of harm to the public, or to any particular members of the public?
- Is it proportionate?
- Can it be policed effectively?
The only prohibitions which can be imposed by a SHPO are those which are necessary for the purpose of protecting the public from sexual harm from an individual. These can, however, be wide ranging. An order 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 on the internet.
The decision of the Court of Appeal in R v Smith and Others (2011)[EWVA 117] reinforces the need for the terms of a SHPO to be tailored to the exact requirements of the case. SHPO’s may be used to limit and manage internet use, where it is considered proportionate and necessary to do so. The behaviour prohibited by the order might well be considered unproblematic if exhibited by another member of the public – it is the individuals previous offending behaviour and subsequent demonstration that they may pose a risk of further such behaviour, which will make them eligible for an order.
The order may include only negative prohibitions, there is no power to impose positive obligations. The order may have effect for a fixed period (not less than five years) or until further order.
Sexual Risk Orders (SRO)
A Sexual Risk Order (SRO) is a civil order which can be sought by the police against an individual who has not been convicted, cautioned etc of a Schedule 3 or Schedule 5 offence but who is nevertheless thought to pose a risk of harm.
A SRO may be applied for on a free standing application to the magistrate’s court by the Chief Officer of Police or the Director General of the National Crime Agency.
An SRO may be made in respect of an individual who has:-
- Done an act of a sexual nature, and
- As a result of which, there is reasonable cause to believe that it is necessary to make an order to protect the public from harm.
Sexual Harm Prevention Orders and Sexual Risk Orders and Foreign Travel Restrictions
Both the SHPO and SRO may contain foreign travel prohibitions, where this is necessary for the purpose of protecting children or vulnerable adults abroad. Restrictions may include:-
- A prohibition on travelling to any country outside the UK named or described in the order
- A prohibition on travelling to any country outside the UK, other than a country named or described in the order, or
- A prohibition on travelling to any country outside the UK
An individual subject to a SHPO or SRO prohibiting them from travelling to all countries outside the UK will be required to surrender their passport(s) at a police station specified in the order. It will be an offence for the individual to fail to surrender their passport as required by the order.
It is important to note that the activity abroad which would constitute causing harm to the child or vulnerable adult does not have to be illegal in the foreign country where it is intended to take place. For example, a SHPO or SRO can prevent an individual from travelling to a foreign country to engage in sexual activity with a child aged 14 even if sexual activity with a child aged 14 is not an offence in the country concerned.
Notification orders require those convicted of sexual offences overseas to register with the UK police, in the same manner as outlined above.
The Police may apply to the court for the order in relation to individuals already in or intending to enter the UK. These orders will not apply to the majority of people convicted of sexual offences already resident in the UK as they will already have been subject to the notification requirements from the point of conviction. The number of applications for notification orders is therefore relatively low compared to the use of sexual offences prevention orders.
Circles UK support the development of Circles of Support and Accountability (Circles), which provide an invaluable and proven effective community-based programme. A ‘circle’ of four or five well trained and supervised local volunteers meet regularly with one ‘Core Member’ and provide social support, and help in keeping them focused on their relapse prevention plan. Circles work in close partnership with police and probation, and with the volunteers often helping with a range of practical challenges that have to be faced on trying to settle back into the community after a prolonged prison sentence. Not all areas can provide Circles yet, but the programme is growing and the best way of finding out about possible availability is through Circles UK , the umbrella organisation for all Circles Projects.
The Lucy Faithfull Foundation (LFF) is a child protection charity committed to reducing the risk of children being sexually abused. LFF staff work with adult male and female sexual abusers; young people with inappropriate sexual behaviours; victims of abuse and other family members.
LFF also runs the Stop it now! Helpline. If you are worried about your own sexual thoughts and behaviour towards children, call the Stop it Now! freephone helpline. Stop it Now! gives all adults confidential information, advice and support to prevent child sex abuse.
LFF also offers two education courses covering inappropriate use of the internet.
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Inform Plus is a 10 week programme, which offers a group environment for those who have been arrested for child pornography-related offences. It allows individuals to explore their behaviour and seek practical advice in order to avoid future re-offending. Groups usually consist of around 6-8 men and 2-3 facilitators from The Lucy Faithfull Foundation.
Inform is an education course of four sessions for the partners, relatives and close friends of people who have been charged in relation to child pornography accessed through the internet. The course aims to provide a ‘safe place’ where people can bring their issues, problems and questions and discuss them in an understanding and supportive environment. Each inform group typically has 4-6 members.[/toggle]
LFF run a computer monitoring service, Securus, which enables individuals the freedom to use the internet responsibly, while capturing unacceptable or illegal activity. By monitoring computer use, Securus encourages individuals to take greater responsibility for their own actions and be more accountable for how they use the internet.