Sexual Harm Prevention Orders - A Convenient Necessity?
When any defendant appears for sentence in a sexual offence, whether or not they go to prison, or for how long, is understandably the focus of attention. But in almost all of those cases, there will also be from the prosecution an application for a Sexual Harm Prevention Order (SHPO). This order, (and the very similar predecessor version called a SOPO), will be made if such an order is necessary to protect the public anywhere in the world from harm. These orders are applied for as a matter of routine in almost every sexual offence case, including all internet-based cases, and they are granted by courts equally routinely. Many defendants barely even object.
‘Necessity’ in this context is deliberately not further defined. It is a matter of judgment for the Court to determine in each case. Conditions of a SHPO must be necessary, proportionate, and not oppressive. They must be clear and enforceable. Conditions can only be prohibitions (although courts regularly permit double negatives or contingent clauses to create positive obligations).
In practice, the court is usually stymied in making a realistic assessment of ‘necessity’ because of two glaring knowledge gaps - proper risk assessment and understanding of other risk management processes. As a consequence, most courts impose the orders simply to be on the safe side, or because the police are asking for one.
Whether or not a protective order is ‘necessary’ depends on an assessment of the risk of reoffending. In sexual crime, any reoffending will inevitably cause harm, and serious harm, so this question always boils down to the likely incidence of repeat or escalating offending. The court will almost always receive a risk assessment from the probation service, typically using three methods or tools. The OGRS and RM2000S are both statistical tools taking static factors, such as age and previous convictions, to calculate the risk of re-conviction over a one, two or four year period. The RM2000S is the leading risk assessment tool for the Probation Service and Ministry of Justice, and it has been in long use, receiving practical and academic validation. It is the best tool available for risk assessment of sexual offenders. And it is widely ignored by the courts and indeed Probation Service, because it tends to predict a low risk of reoffending for most offenders, especially those who have no previous convictions. It seems that Probation Officers, Magistrates and Judges find it intuitively wrong to say that a sex offender is unlikely to reoffend, whatever the evidence. Thus it is that a third tool is used to assess risk - opinion.
The ‘opinion’ measure of risk might, rarely, be clinical. Professionals and experts have potentially available tools, such as the RSVP, to assist in shaping and forming opinions about the risk of reoffending. Here, one can balance precipitating and protective factors, and individualise the assessment of risk. However, in a typical case and in the vast majority of cases no such tool is used or meaningfully analysed. Instead, there is a bland statement that whilst statistical risk is low, the real risk is higher. Pre-sentence reports contain such statements day in day out, and courts rely on this type of observation routinely, sometimes going as far as to further rely on the ‘experience’ of the probation officer in question, as if there is some evidence that such experience assists or supports the opinion. Those who have studied the subject know that statistical tools are much the most useful in predicting risk, which why they are the only tools used by the Ministry of Justice when allocating resources, even if clinical judgment can weightily add to assessment when properly applied.
It has become a trite observation that probation officers spectacularly overstate the risk of reoffending of sex offenders all the time, even if not in every case. If you believed pre-sentence reports, the rates of recidivism would be eye-watering. They are not. The trouble is, in our blame culture no one is prepared to make an honest assessment, ‘just in case’. Not on my watch. There may also be no little element of the stigma that society generally lays at the door of the sex offender, that they must be a predatory pervert just waiting for the chance to offend again, whatever is said.
Whilst courts are being given very little assistance with genuine or meaningful risk assessment, there is also an important knowledge gap. To assess whether or not an order is ‘necessary’ to protect the public from harm, a court needs to know what will happen if they do not make an order, or do not impose certain terms, as well as what will happen if they do. Here we enter the secretive world of the Public Protection Unit (aka ViSOR team or various other names in different forces) of the Police. These are the officers (sometime police officers, sometimes civilian staff of the police) who monitor and manage the risk of sex offenders in their area. It is these officers who are really asking for the SHPO’s, it is these officers who use and enforce them. But how much does the court or the public know about their work? How much can a Crown Prosecutor tell the Court about their powers, procedures or practices? For that matter, where will anyone find anything about their work, their training, the outcomes they deliver, their targets, their aims, their effectiveness, their numbers or indeed anything else? There is an obvious lack of information easily publicly available even for the very interested researcher, let alone to the busy judge, Magistrate or practitioner. On the contrary, to raise such issues with a court is usually an exercise in futility, even though the sentencing guidelines explicitly invite the court to consider what other processes are in place to manage risk.
People subject to supervision often complain about intrusive questioning and unreasonable demands from their PPU Officer, but then perhaps they would. Yet a basic knowledge of procedures would help a court and the public better understand when an SHPO is necessary and when existing powers can amply manage risk. Unlike the notification requirements of the sex offenders register, Parliament has specifically chosen not to give the police powers to analyse internet use, examine computers, install monitoring software, or seize devices unless they have a reasonable suspicion an offence has been committed. So why in every single case can it be right for the police to ask for these powers, let alone the court grant them?
It is often said that an SHPO is required to allow the PPU to do their job properly. This may or may not be true, but it is not the test the Court should apply and shows the enormous gap between reality and perception. The police have managed risk perfectly well for many years without these orders in every case, and police forces around the world manage sex offenders without these orders likewise. Indeed, there are many examples of successful risk management processes used by some police forces that require no such orders. The use of polygraphs by some forces, for example, has been an effective measure to manage resources towards the highest risk offenders. It is a voluntary scheme.
Overall, the basic test of ‘necessity’ at the heart of any application for a SHPO has long since been lost in practice. Instead, it is simply convenient to apply for the same SHPO in every case, some minor amendments to the terms can be done at court if the defence lawyer is sufficiently engaged, and courts grant the applications as a matter of routine practice day in day out because it is convenient to do so. The probation service do not trust their own risk assessments and courts are willing to set aside the evidence for a more convenient version that plays to society’s wider prejudice.
There will be those who ask, ‘who cares’? If it helps the police do their job then more power to them. But here’s the rub. Whilst the public protection unit spend more time and more money managing convicted sex offenders, the very same police forces are struggling to investigate the mountains of intelligence they receive daily regarding other sex offenders. People the Police know are actively committing offences right now. The Crown Prosecution Service is overwhelmed with sexual offences. The courts wait months to hear cases. If the police, the Crown Prosecution Service and The Court were more willing to take an evidence and knowledge based approach to sentencing Sex Offenders, rather than this ‘convenient necessity’, we would all be safer, sooner.
By Matthew Graham and Nicholas Wragg.
Matthew is a partner and heads the Criminal Law Team at Mowbray Woodwards. Nicholas specialises in successfully contesting SHPO’s and has recently appeared in the Court of Appeal to successfully argue against the necessity of indefinite orders.
To contact Matthew or Nicholas please call 01225 485700 or email firstname.lastname@example.org