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Part 2U.K.Notification and orders

Modifications etc. (not altering text)

C1Pt. 2 applied (with modifications) (1.12.2020) by Sentencing Act 2020 (c. 17), ss. 352(2)(b)(3), 416(1) (with ss. 2, 398(1), 406, Sch. 27); S.I. 2020/1236, reg. 2

[F1Sexual harm prevention orders (England and Wales)E+W

Textual Amendments

103ASexual harm prevention orders: applications and groundsE+W

(1)A court may make an order under this section (a “sexual harm prevention order”) in respect of a person (“the defendant”) where subsection (2) or (3) applies to the defendant.

(2)This subsection applies to the defendant where—

(a)the court deals with the defendant in respect of—

F2(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii)a finding that the defendant is not guilty of an offence listed in Schedule 3 or 5 by reason of insanity, or

(iii)a finding that the defendant is under a disability and has done the act charged against the defendant in respect of an offence listed in Schedule 3 or 5,

and

(b)the court is satisfied that it is necessary to make a sexual harm prevention order, for the purpose of—

(i)protecting the public or any particular members of the public from sexual harm from the defendant, or

(ii)protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

(3)This subsection applies to the defendant where—

(a)an application under subsection (4) has been made in respect of the defendant and it is proved on the application that the defendant is a qualifying offender, F3...

[F4(b)the court is satisfied on the balance of probabilities that since the appropriate date the defendant has acted in one or more of the ways alleged by the person making the application, and

(c)the court is satisfied that the defendant having acted in such a way makes it necessary to make a sexual harm prevention order, for the purpose of—

(i)protecting the public or any particular members of the public from sexual harm from the defendant, or

(ii)protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.]

[F5(3A)If a list has been published under section 172 of the Police, Crime, Sentencing and Courts Act 2022 (list of countries where children are at high risk of sexual abuse or sexual exploitation) and has not been withdrawn, the court must have regard to the list in considering—

(a)whether a sexual harm prevention order is necessary for the purpose of protecting children generally, or any particular children, from sexual harm from the defendant outside the United Kingdom, and

(b)in particular, whether a prohibition on foreign travel (see section 103D) is necessary for that purpose.]

(4)[F6A person mentioned in subsection (4A) (“the applicant”) may by complaint to a magistrates’ court apply for a sexual harm prevention order in respect of a person if it appears to the applicant that—]

(a)the person is a qualifying offender, and

(b)the person has since the appropriate date acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made.

[F7(4A)Those persons are—

(a)a chief officer of police;

(b)the Director General of the National Crime Agency (“the Director General”);

(c)the chief constable of the British Transport Police Force;

(d)the chief constable of the Ministry of Defence Police.]

[F8(4B)If a list has been published under section 172 of the Police, Crime, Sentencing and Courts Act 2022 and has not been withdrawn, a person mentioned in subsection (4A) must have regard to the list in considering—

(a)whether a person has since the appropriate date acted in such a way as to give reasonable cause to believe that it is necessary for a sexual harm prevention order to be made for the purpose of protecting children generally, or any particular children, from sexual harm from that person outside the United Kingdom, and

(b)whether to apply for a prohibition on foreign travel (see section 103D) to be included in any such order for that purpose.]

(5)A chief officer of police may make an application under subsection (4) only in respect of a person—

(a)who resides in the chief officer's police area, or

(b)who the chief officer believes is in that area or is intending to come to it.

(6)An application under subsection (4) may be made to any magistrates' court acting for a local justice area that includes—

(a)any part of a relevant police area, or

(b)any place where it is alleged that the person acted in a way mentioned in subsection (4)(b).

[F9(7)If the Director General, the chief constable of the British Transport Police Force or the chief constable of the Ministry of Defence Police makes an application under subsection (4), that person must as soon as practicable notify the chief officer of police for a relevant police area of that application.]

(8)Where the defendant is a child, a reference in this section to a magistrates' court is to be taken as referring to a youth court (subject to any rules of court made under section 103K(1)).

(9)In this section “relevant police area” means—

(a)where the applicant is a chief officer of police, the officer's police area;

(b)where the applicant is the Director General [F10, the chief constable of the British Transport Police Force or the chief constable of the Ministry of Defence Police]—

(i)the police area where the person in question resides, or

(ii)a police area which the [F11applicant] believes the person is in or is intending to come to.

Textual Amendments

F2S. 103A(2)(a)(i) repealed (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 28 (with ss. 413(4)(5), 416(7), Sch. 27); S.I. 2020/1236, reg. 2

103BSection 103A: supplementalE+W

(1)In section 103A—

(2)A person is within this subsection if, whether before or after the commencement of this Part, the person—

(a)has been convicted of an offence listed in Schedule 3 (other than at paragraph 60) or in Schedule 5,

(b)has been found not guilty of such an offence by reason of insanity,

(c)has been found to be under a disability and to have done the act charged against him in respect of such an offence, or

(d)has been cautioned in respect of such an offence.

(3)A person is within this subsection if, under the law in force in a country outside the United Kingdom and whether before or after the commencement of this Part—

(a)the person has been convicted of a relevant offence (whether or not the person has been punished for it),

(b)a court exercising jurisdiction under that law has made in respect of a relevant offence a finding equivalent to a finding that the person is not guilty by reason of insanity,

(c)such a court has made in respect of a relevant offence a finding equivalent to a finding that the person is under a disability and did the act charged against the person in respect of the offence, or

(d)the person has been cautioned in respect of a relevant offence.

(4)In subsection (3), “relevant offence” means an act which—

(a)constituted an offence under the law in force in the country concerned, and

(b)would have constituted an offence listed in Schedule 3 (other than at paragraph 60) or in Schedule 5 if it had been done in any part of the United Kingdom.

For this purpose an act punishable under the law in force in a country outside the United Kingdom constitutes an offence under that law, however it is described in that law.

(5)For the purposes of section 103A, acts, behaviour, convictions and findings include those occurring before the commencement of this Part.

(6)Subject to subsection (7), on an application under section 103A(4) the condition in subsection (4)(b) above (where relevant) is to be taken as met unless, not later than rules of court may provide, the defendant serves on the applicant a notice—

(a)stating that, on the facts as alleged with respect to the act concerned, the condition is not in the defendant's opinion met,

(b)showing the grounds for that opinion, and

(c)requiring the applicant to prove that the condition is met.

(7)The court, if it thinks fit, may permit the defendant to require the applicant to prove that the condition is met without service of a notice under subsection (6).

(8)Subsection (9) applies for the purposes of section 103A and this section.

(9)In construing any reference to an offence listed in Schedule 3, any condition subject to which an offence is so listed that relates—

(a)to the way in which the defendant is dealt with in respect of an offence so listed or a relevant finding (as defined by section 132(9)), or

(b)to the age of any person,

is to be disregarded.

103CSHPOs: effectE+W

[F12(1)A sexual harm prevention order may—

(a)prohibit the defendant from doing anything described in the order;

(b)require the defendant to do anything described in the order.]

(2)Subject to section 103D(1), a prohibition [F13or requirement] contained in a sexual harm prevention order has effect—

(a)for a fixed period, specified in the order, of at least 5 years, or

(b)until further order.

(3)A sexual harm prevention order—

(a)may specify that some of its prohibitions [F14or requirements] have effect until further order and some for a fixed period;

(b)may specify different periods for different prohibitions [F14or requirements].

(4)The only prohibitions [F15or requirements] that may be included in a sexual harm prevention order are those necessary for the purpose of—

(a)protecting the public or any particular members of the public from sexual harm from the defendant, or

(b)protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

[F16(4A)The prohibitions or requirements which are imposed on the defendant by a sexual harm prevention order must, so far as practicable, be such as to avoid—

(a)any conflict with the defendant’s religious beliefs,

(b)any interference with the times, if any, at which the defendant normally works or attends any educational establishment, and

(c)any conflict with any other court order or injunction to which the defendant may be subject (but see subsection (6)).]

(5)In subsection (4) “the public”, “sexual harm”, “child” and “vulnerable adult” each has the meaning given in section 103B(1).

(6)Where a court makes a sexual harm prevention order in relation to a person who is already subject to such an order (whether made by that court or another), [F17 or an order under Chapter 2 of Part 11 of the Sentencing Code (sexual harm prevention orders on conviction),] the earlier order ceases to have effect.

Textual Amendments

[F18103CASHPOs: requirements included in order etc.E+W

(1)A sexual harm prevention order that imposes a requirement to do something on a defendant must specify a person who is to be responsible for supervising compliance with the requirement.

The person may be an individual or an organisation.

(2)Before including such a requirement in a sexual harm prevention order, the court must receive evidence about its suitability and enforceability from—

(a)the individual to be specified under subsection (1), if an individual is to be specified;

(b)an individual representing the organisation to be specified under subsection (1), if an organisation is to be specified.

(3)Subsections (1) and (2) do not apply in relation to electronic monitoring requirements (see instead section 103FA(5) and (6)).

(4)It is the duty of a person specified under subsection (1)—

(a)to make any necessary arrangements in connection with the requirements for which the person has responsibility (“the relevant requirements”);

(b)to promote the defendant’s compliance with the relevant requirements;

(c)if the person considers that—

(i)the defendant has complied with all the relevant requirements, or

(ii)the defendant has failed to comply with a relevant requirement,

to inform the appropriate chief officer of police.

(5)In subsection (4)(c) the “appropriate chief officer of police means—

(a)the chief officer of police for the police area in which it appears to the person specified under subsection (1) that the defendant resides, or

(b)if it appears to that person that the defendant resides in more than one police area, whichever of the chief officers of police of those areas the person thinks it is most appropriate to inform.

(6)A defendant subject to a requirement imposed by a sexual harm prevention order must—

(a)keep in touch with the person specified under subsection (1) in relation to that requirement, in accordance with any instructions given by that person from time to time, and

(b)notify that person of any change of the defendant’s home address.

These obligations have effect as requirements of the order.]

Textual Amendments

103DSHPOs: prohibitions on foreign travelE+W

(1)A prohibition on foreign travel contained in a sexual harm prevention order must be for a fixed period of not more than 5 years.

(2)A “prohibition on foreign travel” means—

(a)a prohibition on travelling to any country outside the United Kingdom named or described in the order,

(b)a prohibition on travelling to any country outside the United Kingdom other than a country named or described in the order, or

(c)a prohibition on travelling to any country outside the United Kingdom.

(3)Subsection (1) does not prevent a prohibition on foreign travel from being extended for a further period (of no more than 5 years each time) under section 103E.

(4)A sexual harm prevention order that contains a prohibition within subsection (2)(c) must require the defendant to surrender all of the defendant's passports at a police station specified in the order—

(a)on or before the date when the prohibition takes effect, or

(b)within a period specified in the order.

(5)Any passports surrendered must be returned as soon as reasonably practicable after the person ceases to be subject to a sexual harm prevention order containing a prohibition within subsection (2)(c) (unless the person is subject to an equivalent prohibition under another order).

(6)Subsection (5) does not apply in relation to—

(a)a passport issued by or on behalf of the authorities of a country outside the United Kingdom if the passport has been returned to those authorities;

(b)a passport issued by or on behalf of an international organisation if the passport has been returned to that organisation.

(7)In this section “passport” means—

(a)a United Kingdom passport within the meaning of the Immigration Act 1971;

(b)a passport issued by or on behalf of the authorities of a country outside the United Kingdom, or by or on behalf of an international organisation;

(c)a document that can be used (in some or all circumstances) instead of a passport.

103ESHPOs: variations, renewals and dischargesE+W

(1)A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a sexual harm prevention order.

(2)The persons are—

(a)the defendant;

(b)the chief officer of police for the area in which the defendant resides;

(c)a chief officer of police who believes that the defendant is in, or is intending to come to, that officer's police area;

(d)where the order was made on an application by a chief officer of police under section 103A(4), that officer.

[F19(2A)If a list has been published under section 172 of the Police, Crime, Sentencing and Courts Act 2022 (list of countries where children are at high risk of sexual abuse or sexual exploitation) and has not been withdrawn, a person mentioned in subsection (2)(b) to (d) must have regard to the list in considering—

(a)whether to apply for an order varying or renewing a sexual harm prevention order for the purpose of protecting children generally, or any particular children, from sexual harm from the defendant outside the United Kingdom, and

(b)in particular, whether to apply for an order imposing, varying or renewing a prohibition on foreign travel for that purpose.]

(3)An application under subsection (1) may be made—

(a)where the appropriate court is the Crown Court, in accordance with rules of court;

(b)in any other case, by complaint.

(4)Subject to subsections (5) and (7), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the sexual harm prevention order, that the court considers appropriate.

(5)An order may be renewed, or varied so as to impose additional prohibitions [F20or requirements] on the defendant, only if it is necessary to do so for the purpose of—

(a)protecting the public or any particular members of the public from sexual harm from the defendant, or

(b)protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.

Any renewed or varied order may contain only such prohibitions [F21and requirements] as are necessary for this purpose.

[F22(5A)Any additional prohibitions or requirements that are imposed on the defendant must, so far as practicable, be such as to avoid—

(a)any conflict with the defendant’s religious beliefs,

(b)any interference with the times, if any, at which the defendant normally works or attends any educational establishment, and

(c)any conflict with any other court order or injunction to which the defendant may be subject.]

[F23(5B)If a list has been published under section 172 of the Police, Crime, Sentencing and Courts Act 2022 and has not been withdrawn, the court must have regard to the list in considering—

(a)whether any order varying or renewing the sexual harm prevention order is necessary for the purpose of protecting children generally, or any particular children, from sexual harm from the defendant outside the United Kingdom, and

(b)in particular, whether an order imposing, varying or renewing a prohibition on foreign travel is necessary for that purpose.]

(6)In [F24subsections (2A), (5) and (5B)] “the public”, “sexual harm”, “child” and “vulnerable adult” each has the meaning given in section 103B(1).

(7)The court must not discharge an order before the end of 5 years beginning with the day on which the order was made, without the consent of the defendant and—

(a)where the application is made by a chief officer of police, that chief officer, or

(b)in any other case, the chief officer of police for the area in which the defendant resides.

(8)Subsection (7) does not apply to an order containing a prohibition on foreign travel and no other prohibitions [F25or requirements].

(9)In this section “the appropriate court” means—

(a)where the Crown Court or the Court of Appeal made the sexual harm prevention order, the Crown Court;

(b)where an adult magistrates' court made the order, that court, an adult magistrates' court for the area in which the defendant resides or, where the application is made by a chief officer of police, any adult magistrates' court acting for a local justice area that includes any part of the chief officer's police area;

(c)where a youth court made the order and the defendant is under the age of 18, that court, a youth court for the area in which the defendant resides or, where the application is made by a chief officer of police, any youth court acting for a local justice area that includes any part of the chief officer's police area;

(d)where a youth court made the order and the defendant is aged 18 or over, an adult magistrates' court for the area in which the defendant resides or, where the application is made by a chief officer of police, any adult magistrates' court acting for a local justice area that includes any part of the chief officer's police area.

In this subsection “adult magistrates' court” means a magistrates' court that is not a youth court.

Textual Amendments

103FInterim SHPOsE+W

(1)This section applies where an application under section 103A(4) (“the main application”) has not been determined.

(2)An application for an order under this section (“an interim sexual harm prevention order”)—

(a)may be made by the complaint by which the main application is made, or

(b)if the main application has been made, may be made by the person who has made that application, by complaint to the court to which that application has been made.

[F26(2A)If a list has been published under section 172 of the Police, Crime, Sentencing and Courts Act 2022 (list of countries where children are at high risk of sexual abuse or sexual exploitation) and has not been withdrawn, a person who has made, or is considering making, an application under section 103A(4) must have regard to the list in considering—

(a)whether to apply for an interim sexual harm prevention order for the purpose of protecting children generally, or any particular children, from sexual harm from the defendant outside the United Kingdom, and

(b)in particular, whether to apply for a prohibition on foreign travel to be included in any such order for that purpose.]

(3)The court may, if it considers it just to do so, make an interim sexual harm prevention order[F27—

(a)prohibiting the defendant from doing anything described in the order;

(b)requiring the defendant to do anything described in the order.]

[F28(3A)If a list has been published under section 172 of the Police, Crime, Sentencing and Courts Act 2022 and has not been withdrawn, the court must have regard to the list in considering—

(a)whether to make an interim sexual harm prevention order for the purpose of protecting children generally, or any particular children, from sexual harm from the defendant outside the United Kingdom, and

(b)in particular, whether to include in any such order a prohibition on foreign travel for that purpose.]

(4)Such an order—

(a)has effect only for a fixed period, specified in the order;

(b)ceases to have effect, if it has not already done so, on the determination of the main application.

(5)The applicant or the defendant may by complaint apply to the court that made the interim sexual harm prevention order for the order to be varied, renewed or discharged.

[F29(6)Subsections (2A) and (3A) apply in relation to an application for the variation or renewal of an interim sexual harm prevention order as they apply in relation to an application for such an order.]

[F30(7)If the Director General of the National Crime Agency, the chief constable of the British Transport Police Force or the chief constable of the Ministry of Defence Police makes an application under this section, that person must as soon as practicable notify the chief officer of police for a relevant police area of that application.

(8)In subsection (7), “relevant police area” has the same meaning as in section 103A (sexual harm prevention orders: applications and grounds) (see section 103A(9)).]

Textual Amendments

103GSHPOs and interim SHPOs: notification requirementsE+W

(1)Where—

(a)a sexual harm prevention order is made in respect of a defendant who was a relevant offender immediately before the making of the order, and

(b)the defendant would (apart from this subsection) cease to be subject to the notification requirements of this Part while the order (as renewed from time to time) has effect,

the defendant remains subject to the notification requirements.

(2)Where a sexual harm prevention order is made in respect of a defendant who was not a relevant offender immediately before the making of the order—

(a)the order causes the defendant to become subject to the notification requirements of this Part from the making of the order until the order (as renewed from time to time) ceases to have effect, and

(b)this Part applies to the defendant, subject to the modification set out in subsection (3).

(3)The “relevant date” is the date of service of the order.

(4)Subsections (1) to (3) apply to an interim sexual harm prevention order as if references to a sexual harm prevention order were references to an interim sexual harm prevention order, and with the omission of “(as renewed from time to time)” in both places.

(5)Where—

(a)a sexual harm prevention order is in effect in relation to a relevant sex offender (within the meaning of section 88A), and

(b)by virtue of section 88F or 88G the relevant sex offender ceases to be subject to the notification requirements of this Part,

the sexual harm prevention order ceases to have effect.

F31(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F32(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

103HSHPOs and interim SHPOs: appealsE+W

(1)A defendant may appeal against the making of a sexual harm prevention order—

F33(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)where the order was made by virtue of section 103A(2)(a)(ii) or (iii), as if the defendant had been convicted of the offence and the order were a sentence passed on the defendant for that offence;

(c)where the order was made on an application under section 103A(4), to the Crown Court.

(2)A defendant may appeal to the Crown Court against the making of an interim sexual harm prevention order.

(3)A defendant may appeal against the making of an order under section 103E, or the refusal to make such an order—

(a)where the application for such an order was made to the Crown Court, to the Court of Appeal;

(b)in any other case, to the Crown Court.

(4)On an appeal under subsection (1)(c), (2) or (3)(b), the Crown Court may make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just.

(5)Any order made by the Crown Court on an appeal under subsection (1)(c) or (2) (other than an order directing that an application be re-heard by a magistrates' court) is for the purposes of section 103E(9) or 103F(5) (respectively) to be treated as if it were an order of the court from which the appeal was brought (and not an order of the Crown Court).

Textual Amendments

103IOffence: breach of SHPO or interim SHPO etcE+W

[F34(A1)A person who, without reasonable excuse—

(a)does anything that the person is prohibited from doing by a sexual harm prevention order or an interim sexual harm prevention order, or

(b)fails to do something that the person is required to do by a sexual harm prevention order or an interim sexual harm prevention order,

commits an offence.]

(1)A person who, without reasonable excuse, does anything that the person is prohibited from doing by—

F35(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F36(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)a sexual offences prevention order,

(d)an interim sexual offences prevention order, or

(e)a foreign travel order,

commits an offence.

[F37(1A)A person who, without reasonable excuse, fails to do something that the person is required to do by a sexual offences prevention order or an interim sexual offences prevention order commits an offence.

(1B)A person who, without reasonable excuse—

(a)does anything that the person is prohibited from doing by a relevant Scottish order, or

(b)fails to do something that the person is required to do by a relevant Scottish order,

commits an offence.

(1C)In subsection (1B) “relevant Scottish order” means—

(a)a sexual harm prevention order made under section 11 or 12 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), or

(b)an interim sexual harm prevention order made under section 21 of that Act.]

F38(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)A person guilty of an offence under this section is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 6 months or a fine or both;

(b)on conviction on indictment, to imprisonment for a term not exceeding 5 years.

(4)Where a person is convicted of an offence under this section, it is not open to the court by or before which the person is convicted to make, in respect of the offence, an order for conditional discharge.

Textual Amendments

103JSHPOs and interim SHPOs: guidanceE+W

(1)The Secretary of State must issue guidance to [F39chief officers of police, the Director General of the National Crime Agency, the chief constable of the British Transport Police Force and the chief constable of the Ministry of Defence Police] in relation to the exercise by them of their powers with regard to sexual harm prevention orders and interim sexual harm prevention orders.

(2)The Secretary of State may, from time to time, revise the guidance issued under subsection (1).

(3)The Secretary of State must arrange for any guidance issued or revised under this section to be published in such manner as the Secretary of State considers appropriate.

Textual Amendments

103KSHPOs and interim SHPOs: supplementaryE+W

(1)Rules of court—

(a)may provide for a youth court to give permission for an application under section 103A(4) against a person aged 18 or over to be made to the youth court if—

(i)an application to the youth court has been made, or is to be made, under that section against a person aged under 18, and

(ii)the youth court thinks that it would be in the interests of justice for the applications to be heard together;

(b)may, in relation to a person attaining the age of 18 after proceedings against that person by virtue of section 103A, 103E, 103F or 103G(6) or (7) have begun—

(i)prescribe circumstances in which the proceedings may or must remain in the youth court;

(ii)make provision for the transfer of the proceedings from the youth court to a magistrates' court that is not a youth court (including provision applying section 103F with modifications).

(2)A person's age is treated for the purposes of sections 103A to 103J and this section as being that which it appears to the court to be after considering any available evidence.]