This is part of our information section on understanding your criminal record. Details of other sentences/disposals can be found here.

Who is it issued by and how can I contact them?

Issued by the court – contact the administering court.

Does it involve guilt?

Not necessarily. An order may be made in relation to ‘any person who has been convicted, found not guilty by reason of insanity or found to be under a disability and to have done the act charged or cautioned for an offence listed in either Schedule 3 or 5 of the Sexual Offences Act 2003.’

A SHPO may be given in Court at the time of conviction or imposed by a Court at a later date upon an application made by the police or other agency.

Is it recorded on the Police National Computer (PNC)?

Yes.

Is it classed as a conviction?

Yes. If it is given at conviction it is regarded as a ‘relevant order’.

Length of the order

A SHPO may have effect:-

1. For a fixed period of at least 5 years
2. Until further order

How long will it be on my record?

It will remain on the Police National Computer indefinitely and can still be mentioned in future criminal proceedings even after it has become spent.

When does it become spent?

After the length of the order.

When do I have to declare it?

You do not have to declare it after it is spent except for an occupation exempt from the Rehabilitation of Offenders Act, e.g. working with children. Before it is spent, you will need to declare it when asked, to employers, insurance companies and others.

Is it disclosed on DBS checks?

Yes. It will be disclosed on both standard and enhanced checks unless it is eligible for filtering.

Once spent, it will not be disclosed on basic checks.

Do I have the right to appeal and what is the process?

GOV.UK information on appealing a Court decision can be found here.

What can a SHPO include?

A SHPO prohibits an individual from doing anything described in the order. The order may specify that some of its prohibitions have effect until further order and some for a fixed period.

Prohibitions must be necessary for the purpose of:-

1. Protecting the public or any particular member of the public from sexual harm, or
2. Protecting children or vulnerable adults generally, or any particular children or vulnerable adults from sexual harm outside of the UK

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 individual’s 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.

Notification requirements

• Where a SHPO is made in respect of an individual who was subject to notification requirements under the Sex Offenders Act 1997 immediately before the making of the order, and the individual would cease to be subject to these notification requirements while the order has effect, the individual will remain subject to the notification requirements.
• Where a SHPO is made in respect of an individual who was not subject to notification requirements under the Sex Offenders Act 1997 immediately before the making of the order, the order causes the individual to become subject to the notification requirements under the Sex Offenders Act from the making of the order until the order ceases to have effect.

Discharge, variation and renewal of an order

An order cannot be discharged within 5 years of it being made without the agreement of both the individual and the police.

An application can be made to have the order varied by either the police or the individual concerned. It may be necessary to vary the order as a result of:-

• deletion of unnecessary conditions
• addition of supplementary conditions

A renewal may be necessary where the original order is close to expiry and the police have cause to believe that the individual continues to pose a risk.

Other information

The new Sexual Harm Prevention Order (SHPO) will replace Sexual Offences Prevention Orders (SOPO) and Foreign Travel Order.

When deciding whether to issue a SHPO details of the offence are likely to be a key factor in the courts decision, together with the individual’s 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?

Any breach of the order is a criminal offence punishable by a maximum of five years imprisonment.

Who is it issued by and how can I contact them?

Issued by the court – contact the administering court.

Does it involve guilt?

No. It is made in relation to an individual who has not been convicted or cautioned of any offence but who is thought to pose a risk of harm.

Is it recorded on the Police National Computer (PNC)?

Yes. A facility is available on the PNC which allows an entry to be recorded which does not constitute a criminal record but is available for police information.

Is it classed as a conviction?

No – unless the SRO is breached.

How long will it be on my record?

Although an SRO does not result in a criminal record, the information can still be used and taken into consideration if further offences are committed.

When does it become spent?

N/A

When do I have to declare it?

An SRO is not a caution or a conviction, so isn’t formally covered by the Rehabilitation of Offenders Act.

Is it disclosed on DBS checks?

Not on standard checks.

It might be disclosed as part of an enhanced check in the ‘relevant information’ section, i.e. the offence has a bearing on the kind of work you are applying for.

Do I have the right to appeal and what is the process?

GOV.UK information on appealing a Court decision can be found here.

What can an SRO include?

The order may prohibit the person from doing anything described in it. This includes preventing travel overseas. Any prohibition must be necessary for protecting the public in the UK from sexual harm or, in relation to foreign travel, protecting children or vulnerable adults from sexual harm.

Notification requirements

The SRO does not make the individual subject to the notification requirements for registered sex offenders. However, it does require the individual to notify the police of:-

• Their name
• Their home address

This information must be notified within 3 days of the order being made or whenever the information changes.

Discharge, variation and renewal of an SRO

Discharge – An order cannot be discharged within 2 years of it being made without the agreement of both the police and the individual concerned.

Variation – Applications can be made by either the police or the individual concerned for the purposes of deleting unnecessary prohibitions or adding supplementary conditions

Renewal – A renewal of the order may be necessary where the original is close to expiry and the police have cause to believe that the individual continues to pose a risk.

Other information

The new Sexual Risk Order replaces the Risk of Sexual Harm Order.

An Sexual Risk Order may be applied for on a free standing application to the magistrates court by the Chief Officer of Police or the Director General of the National Crime Agency. An SRO may be made in respect of any 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.

Any breach of the order is a criminal offence punishable by a maximum of five years imprisonment.

This is part of our information section on understanding your criminal record. Details of other sentences/disposals can be found here.

Who is it issued by and how can I contact them?

Issued by the court – contact the administering court.

Does it involve guilt?

Not necessarily. An order may be made against any ‘qualifying offender’ defined by section 106(5) as ‘a person who before or after the commencement of the Sexual Offences Act 2003 has been convicted of a Schedule 3 or Schedule 5 offence, found not guilty by insanity or disability and to have done the act charged, or cautioned of such an offence under the Act.’

An order can also be given based solely on alleged behaviour which did not result in any prosecution.

Is it recorded on the Police National Computer (PNC)?

Yes

Is it classed as a conviction?

Yes, If it’s given at conviction it is regarded as a ‘relevant order’.

How long will it be on my record?

It will remain on the PNC indefinitely and can still be mentioned in future criminal proceedings even after it has become spent.

When does it become spent?

After the length of the order.

When do I have to declare it?

You do not have to declare it after it is spent except for an occupation exempt from the Rehabilitation of Offenders Act, e.g. working with children. Before it is spent, you will need to declare it, when asked, to employers, insurance companies and others.

Is it disclosed on DBS checks?

Yes, it will be disclosed on both standard and enhanced checks unless it is eligible for filtering.

Once spent, it will not be disclosed on a basic check.

What guidance is there on fair process?

There is CPS Guidance on sexual offences prevention orders.

Do I have the right to appeal and what is the process?

GOV.UK information on appealing a Court decision can be found here.

What can a SOPO include?

A SOPO contains prohibitions on an individual doing any of the things stipulated. These might include having unsupervised contact with anyone under the age of 18 or being present in certain places such as schools or play parks.

Any prohibition contained needs to be justified in relation to the risk posed by the individual and must be capable of being policed effectively. A breach of any of the prohibitions in an order is a criminal offence under the Sexual Offences Act 2003 and carries a maximum penalty of 5 years imprisonment. The imposition of a SOPO also requires the named individual to comply with the notification requirements for the duration of the order.

The prohibitions contained in SOPO’s are not standard and are drafted by local police or prosecutors dealing with a case. Guidance to police and prosecutors regarding the use of SOPO’s states:-

“Care needs to be taken that the prohibitions in the order can be justified by the assessment of risk. The questions that need to be asked when considering an order are:-

• 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?” (Hone Office 2004)

For an example of a blank SOPO template used by the Crown Court see here.

Relevant case law

The key terms within the 2003 Sexual Offences Act guidance on when SOPO’s should be made are “necessary for the purpose of protecting the public” and “serious sexual harm”.

The term “necessary” was given clarification by the Court of Appeal when dealing with a restraining order in the case of R v Halloren (2004) [EWCA Crim 233]. It was judged here that the word “necessary” imported a higher threshold than that it was merely “desirable” that an order or any prohibitions within it should be made.

The phrase “serious sexual harm” means serious physical or psychological harm caused by the potential subject of the order committing one or more of the offences listed in Schedule 3 of the Act.

Whilst no standard set of prohibitions exists, those applying for orders and drafting prohibitions should avoid terms which are unnecessarily wide since an order can involve interference with fundamental rights, significantly Article 8 of the ECHR (Right to respect for private and family life). If the necessity of an order or any of the terms within it can be brought into question, the potential for legal action to remove the order exists. This is particularly so where conditions compromise the employability of the individual or where orders have been used to circumvent the usual application procedures for search warrants.

In R v Hemsley (2010) [EWCA Crim 225], the Court of Appeal was particularly critical of the following prohibition within a SOPO

“Not to own or use any computer, electronic, magnetic or optical device which has the capability of storing, receiving or transmitting data without permitting any police constable to enter the premises upon which they are kept in order that they can examine and if necessary remove any such device for the purpose of carrying out such an examination”.

His Honour Judge Nicholas Cooke QC, describes the prohibition in the following terms:

“…an impermissible attempt to confer extensive powers of search and seizure upon the police, pursuant to a statutory provision which only enables an order preventing something from being done to be made. SOPOs should not create a situation in which police powers of search and seizure are extended with none of the procedural safeguards, which usually and importantly regulate the exercise of such powers. Further, given this Applicant’s academic and employment background the effect of this prohibition would be seriously to compromise his employability.”

Judge Cooke also regarded unnecessary those prohibitions that prevented the individual from working, volunteering, or becoming involved in any organisation where contact with children under 16 was likely. In giving his judgement he stated that the “prohibitions seek to address potential concerns which are better left to be dealt with under the Safeguarding Vulnerable Groups Act 2006, the detailed provisions of which are better suited to manage risk in a case of this type than a SOPO”.

It has also been judged in R v Hammond (2008) [EWCA Crim 1358] that the appropriate period of an order should be one equal to the length of time for which the individual is subject to the notification requirements. In some cases, a SOPO has been imposed ‘until further order’ despite the subject only being required to register with the police for a determinate period of between five to ten years. It is not known how many orders made prior to this ruling still contain prohibitions such as these. Those individuals subject to such conditions should seek legal advice from a solicitor.

A much more extensive judgement on the appropriate use of SOPOs can be found in R v Smith & Others (2011) [EWCA Crim 1772]. In summary, the Court of Appeal ruled or confirmed the following;

• SOPOs should not duplicate other regimes designed to offer public protection. For example, there is little point in making an order banning an individual from certain types of activity if such a ban is already in place as a result of the provisions of the Safeguarding Vulnerable Groups Act 2006;
• SOPOs are not generally appropriate in the cases of those subject to indeterminate sentences (Life or IPP) as the licence conditions attached to such individuals offer a much more reflexive approach to managing risk where appropriate;
• That SOPOs should run in tandem with the normal duration of the notification requirements and should not be used to extend notification requirements beyond the point normally prescribed by law (i.e. those whose sentences warrant a determinate period on the ‘register’ should not be made the subject of an indeterminate SOPO);
• Blanket prohibitions on computer or internet use are not appropriate. Rather a prohibition should prevent the subject from refusing the police access to a computer in order to inspect it upon request;
• Prohibitions on unsupervised contact with children should not be included in the case of those convicted of internet-based offences ‘just in case’ they progress to contact offences. Instead “There must be identifiable risk of contact offences before this kind of prohibition can be justified”;
• Police and prosecutors should provide a draft of a proposed order at least two days in advance of any hearing and certainly not on the day of the hearing itself.

Getting a SOPO changed or removed

It has been a common problem for individuals with convictions for sexual offences to have been made subject to a SOPO which exceeds the original intentions of the legislation which introduced the orders. For instance, a number of individuals have been sentenced to a community order for a relevant offence which would originally make them subject to the notification requirements for five years, but were also made the subject of an indeterminate SOPO. This would have the effect of extending the notification requirements beyond the normal duration (as those with a SOPO must also register with the police under the terms of the 2003 Act whilst subject to the order)

It is possible for an individual subject to a SOPO to apply to have it discharged or varied at any time. However, a Court will only have the power to discharge a SOPO totally within 5 years of it having been made with the permission of the Chief Constable/Commissioner of Police in that area. This does not however prevent the court from removing or amending the terms of the order or its duration within that period. After five years, the court does not need the consent of the police to discharge an order in its entirety.

In some cases, solicitors have been able to conduct representation regarding SOPO’s using the same legal aid certificate which related to the client at the time of their original court hearing. However, a number of individuals have successfully represented themselves at hearings in order to have their SOPO amended as appropriate. Those considering doing this should remember that the amendment of a SOPO is achieved through a court acting in a civil capacity rather than as a criminal court – therefore representing oneself is a realistic possibility and court staff should be able to advise individuals on the correct processes.

In any event, the first point of contact for seeking the amendment or discharge of an order should be the nominated Public Protection Unit police officer responsible for the supervision of each case. Whilst the permission of this officer is not required to make an application, it may be that an amendment can be achieved by mutual consent and negotiation in advance of any court hearing.

Applying to discharge a SOPO

An application would be made to the Court where the order was imposed and would need to be heard by a Judge. You would normally need to obtain permission from the Police if you wish to discharge (remove) a SOPO within 5 years of being made. After that you would not need permission. Only certain members of the Police Force or the person who is subject to the order can apply for discharge and there will usually need to be a change in circumstances to justify discharging a SOPO.

Applying to vary a SOPO

This is the most common method of challenging a SOPO. Permission is not usually required and an application would need to be made to the Court where the order was imposed and would need to be heard by a Judge.

Additional information

As of March 2015, SOPO’s have been replaced by Sexual Harm Prevention Orders (SHPO) and Sexual Risk Orders (SRO).

This is part of our information section on understanding your criminal record. Details of other sentences/disposals can be found here.

Who is it issued by and how can I contact them?

Issued by the court – contact the administering court.

Does it involve guilt?

Not necessarily. Since September 2009 any person convicted of any criminal offence can be made subject to a restraining order.

Is it recorded on the Police National Computer (PNC)?

Yes

Is it classed as a conviction?

Yes

How long will it be on my record?

It will remain on the PNC indefinitely and can still be mentioned in future criminal proceedings even after it has become spent.

When does it become spent?

After the length of the order.

When do I have to declare it?

You do not have to declare it after it is spent except for an occupation exempt from the Rehabilitation of Offenders Act, i.e. working with children. Before it is spent, you will need to declare it, when asked, to employers, insurance companies and others.

Is it disclosed on DBS checks?

Yes, it will be disclosed on both standard and enhanced checks unless it is eligible for filtering.

Once spent, it will not be disclosed on a basic check.

What guidance is there on fair process?

There is CPS Guidance on restraining orders.

Do I have the right to appeal and what is the process?

GOV.UK information on appealing a Court decision can be found here.

What are the implications for life in the community?

Restraining orders are usually given in cases where:-

• a defendant and witness are known to each other (i.e. domestic violence cases) or
• where there is ongoing contact (i.e. the victim runs a local business)

The terms of a restraining order can differ depending on the nature of the offence committed. Sometimes a person will be restrained from approaching the house or place of work of the victim. They may be prohibited from contacting the victim whether in person or by electronic means.

Apart from the obvious need to stay away from and have no contact with the protected party, a restraining order can have other consequences. For example, you may be required to leave your home if you live with the person who receives the Order and visiting your children may become difficult. Any contact could potentially put you in breach of the order and could result in a prison sentence or fine.

Frequently asked questions

Who is it issued by and how can I contact them?

Harassment Warnings are issued by the Police – contact the administering force.

Does it involve guilt?

No. Acknowledging receipt of the notice does not mean that you are admitting any wrongdoing.  You are simply accepting information about the Protection from Harassment Act and the police position on investigating allegations of harassment.

Is it recorded on the Police National Computer (PNC)?

Yes. A facility is available on the PNC which allows an entry to be recorded which does not constitute a ‘criminal record’ but is accessible for police use.

Is it classed as a conviction?

No, but it is kept on the PNC and can be taken into consideration by the Police if there are any further allegations of harassment.

How long will it be on my record?

Information is retained on the PNC and can be used in future criminal proceedings as evidence of character.

When does it become spent?

It isn’t a caution or conviction, so isn’t formally covered by the Rehabilitation of Offenders Act 1974.

When do I have to declare it?

You very rarely get asked about Harassment Warnings, so you don’t have to declare it.

However, it is not covered by the Rehabilitation of Offenders Act and so, when asked, it must be disclosed. It is rare for employers to ask about Harassment Warnings.

Is it disclosed on DBS Checks?

Not on a standard check.

It might be disclosed as part of an enhanced check in the ‘other relevant information’ section, i.e. if the offence has a bearing on the kind of work you are applying for. However, in our experience it is rare for Harassment Warnings to be disclosed in the ‘other relevant information’ section.

Do I have the right to appeal and what is the process?

There is no formal process for appealing a Harassment Warning. If you wish to complain about the decision or how the case was handled, you need to make a complaint to the Chief Constable or Commissioner of the administering force.

Each police force should be willing to receive requests for Harassment Warnings to be ‘expunged’ as part of their ownership as Data Controllers of the PNC. However, this is only done in exceptional circumstances, particularly where a significant amount of time has passed since receiving the warning. If you did decide to try and have the warning expunged, then there is a risk that if you earlier admitted guilt, this could be used as evidence if you decided to proceed with charge in lieu.

Other information

The Protection from Harassment Act makes it a criminal offence to pursue a course of conduct which amounts to harassment of another person, where that person knows (or ought to know) that the act amounts to harassment (which can include alarming a person or causing them distress).

There needs to be at least 2 separate occasions of conduct which, together, can be said to amount to harassment. This is where the apparent need for a Harassment Warning comes in – a single act on its own cannot amount to a ‘course of conduct’ but it can be enough for a Warning to be given.

A Warning can be given by police following an allegation which, if true and repeated, would amount to an offence under the Protection from Harassment Act. Until or unless further similar allegations are made, there is not enough evidence to charge a person with harassment, hence the Warning. The Warning lets the individual know that a complaint has been received and that a charge may follow if the conduct complained of is repeated.

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