Sexual Risk Orders & Interim Sexual Risk Orders
What is a Sexual Risk Order?
Sexual Risk Order Definition:
Sexual Risk Orders are available under Part 2 of the Sexual Offences Act 2003 and can be applied to those who pose a risk of harm. The Anti-social Behaviour, Crime and Policing Act 2014 amended the Sexual Offences Act 2003. Sexual Risk Orders can be applied to any individual who poses a risk of harm to the public in the UK and/or children or vulnerable adults abroad.
Interim Sexual Risk Order Definition:
Interim Sexual Risk Orders are placed to protect the public, or any particular individuals, during any period between the application for a full order and its determination. Breach of any of the prohibitions of an interim order is a criminal offence carrying the same maximum penalty as a breach of a full order.
How Sexual Risk Orders affects defendants
These two types of Order are of special interest because of the profound impact they can have on every aspect of a person’s life. The direct consequences of being made subject to one of these orders are, arguably, a massive and disproportionate punishment.
Every jail sentence is as a consequence of being convicted of a serious criminal offence, but at least allows the offender to leave prison, complete the license period and begin life again with a clean slate. This is not the case for somebody made the subject of a Sexual Risk Order. The stigma attached to such an order is truly life-changing.
Consider that somebody who has never been convicted of a criminal offence can become the subject of an order that:
- May and often does last for 10 years.
- If breached, can lead to prosecution and a custodial sentence.
- Can be extended, sometimes, on what appears a whim.
- Almost always renders the subject as unemployable for the rest of their working lifetime.
- Prevents and forbids contact with children in certain circumstances.
- Often compromises any new relationship because the police will always want to conduct a risk assessment upon the new partner and any family that they have.
- That heavily restricts foreign travel and often leads to a lottery whether the subject will be allowed into the country.
- All these inhibitions on enjoying your life come without ever being convicted of a criminal offence.
Impact On Defendants’ Human Rights.
- If there ever was a piece of legislation that impacts unfairly on a person’s human rights this is that legislation.
It would be common for the National Crime Agency to pay particular attention to an individual who frequently travels abroad. There often has been a complaint from a foreign national living in a distant land to a foreign agency of suspected grooming of a child. The NCA may have investigated the individual and found no evidence upon which to bring a formal prosecution in this country. However, an application can be made to the Magistrates’ Court, which has to be on notice, for a Sexual Risk Order.
The police will almost always serve the application by hand on the subject, turning up unannounced at the subject’s home address. The application is often hundreds of pages long. The application will almost always be accompanied by an application for an Interim Sexual Risk Order, being an immediate application to the local Magistrates’ Court for the Interim Order to be made whilst the parties are preparing for the application for the full order.
The application for a Sexual Risk Order is often very complicated. Different rules of evidence apply, as the applications follow the civil evidence rules but brought in the criminal arena of the Magistrates’ Court. This is another reason that sets such orders apart from any other kind of punishment.
No witnesses and no jury required?
In the Crown Court, the criminal rules of evidence apply, witnesses have to be called and can be cross-examined. A defendant is only convicted if the jury is sure that the evidence shows the defendant to be guilty. However, where there is an application for a Sexual Risk Order (and Interim Sexual Risk Order), no live witness need ever be called by the police to support their application, and if the police never have to bring a live witness to court then no witness can be cross-examined.
The final injustice is the fact that an application for such an order with such life-changing consequences is never presented to or decided by a jury. At the Crown Court a defendant always has the right to have a jury of 12 normal people who decide where the truth lies. In these applications written witness statements (more often than not written witness statements of the police officers who are involved in the investigation of the subject) are presented to a District Judge in the Magistrates’ Court who is left with the task of trying to present a balanced and fair tribunal.
It is ironic that the subject of a Sexual Risk Order application is actually formally described within the proceedings as a ‘defendant’ but is not afforded any of the rights and protections a normal defendant (in the Magistrates’ Court or Crown Court) would be entitled to.
Almost all applications for a Sexual Risk Order are preceded by an application for an Interim Sexual Risk Order. It is astonishing how things can get even more unfair for a defendant in these proceedings because the evidential watershed that the police have to reach to persuade a Magistrates’ Court to grant an Interim Order is significantly lower than the threshold required to persuade a Magistrates’ Court to grant a Sexual Risk Order.
The defendant then has the prejudice and stain of going into the application for the full order already being the subject of an Interim Order, making his chances of avoiding the full order even slimmer.
Misuse of Interim Sexual Risk Orders
The Anti-social Behaviour, Crime and Policing Act 2014 (amending the Sexual Offences 2003 Act) sounds like an Act that has been around long enough for the police, prosecution and courts to have got to grips with its intricacies. This is unfortunately not the case. Very few applications have been brought to court and so the courts’ experience is still very limited.
The police, and particularly the National Crime Agency, have only just realised the weapon the act has placed in its armoury. They can obtain an order of the most draconian terms against any person of interest to them, without having to prove any offence to the criminal standard. Once the order is made a police officer can attend at your home address, unannounced, and demand to inspect all communication devices and the history of searches contained within each. In reality, there is no ability to refuse such a visit or inspection.
- Police, on occasions, misunderstand the new laws and the powers they are afforded under them:
- They sometimes fail to understand and recognise the differences in the legal obligations placed on defendants who are subject to Sexual Risk Orders, as opposed to other Orders under the same act.
- They are prone to misapply the rules of evidence and have a habit of serving evidence within applications that has little or no relevance and may even be inadmissible.
- They are sometimes too quick to make arrests for breaching Sexual Risk Orders and Interim Sexual Risk Orders, which can easily lead to a custodial sentence.
Appealing a Sexual Risk Order
If you are unlucky enough to have recently been served with an application for a Sexual Risk Order and an Interim Sexual Risk Order you may want to consider whether you can take the risk of being represented by a duty solicitor or a solicitor who may be local to where you live, as almost certainly they will never have defended one of these applications before.
Almost always the prosecution police force will employ an experienced barrister to make the applications for the Interim Sexual Risk Order and the full Sexual Risk Order. Typically, the National Crime Agency will employ from the same pool of barristers to present their applications. What this means is that the defendant will face an advocate in court who has considerable experience in this very complicated area of law.
If you have received an application, and you have a solicitor you are thinking of instructing, the first question that you might want to think about asking is whether they have ever contested an application for a Sexual Risk Order or Interim Sexual Risk Order.
Public funding (Legal Aid) is available if you have been served with an application for a Sexual Risk Order and/or an Interim Sexual Risk Order. Public funding is also available to appeal a Sexual Risk Order and available to appeal an Interim Sexual Risk Order.