Guidance and category codes for new sexual harm/risk orders

On Friday 31 March 2023 sections 10 to 40 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 will be commenced.

These sections introduce two preventative orders which can be applied to relevant sex offenders and those who pose a risk of harm: Sexual Harm Prevention Orders (SHPOs), and Sexual Risk Orders (SROs) respectively.

Civil legal assistance implications

Advice and assistance, and civil legal aid will be available in respect of the new orders. We have retained the existing category codes. However, we will be updating the category descriptions for these category codes on the online system and on our website shortly.

Advice and assistance: the category code continues to be SOA (Sex Offenders Act).

Civil legal aid: you should use category code SOPO (Sexual offences prevention orders under the Sexual Offences Act 2003), which you can continue to use for older cases covered by the transitional provisions, in addition to new cases under the Act.

When applying for civil legal aid your statutory statement should give details of the precise nature of the proceedings raised against the applicant so that we can provide proper intimation of the legal aid application to the opponent.

Criminal legal assistance implications

• variations, renewals, or discharges of SHPOs in criminal proceedings are covered by the existing grant of legal aid
• breaches of SHPOs – this is a new offence, so a new application is needed, which will usually be an application for solemn criminal legal aid. The case category BSEX (Breach of Sex Offenders Act 1997 – Certain sexual acts outside UK) should be used for these cases. We will be updating the category description on the online system and on our website to cover these breaches shortly.

Background to the changes

The new orders have a lower risk threshold than the old orders, allowing both orders to be used to manage risk against adults and vulnerable adults abroad, as well as children.

Also, their remit is wider, enabling, for example, foreign travel restrictions to be applied under either order.

Sexual Harm Prevention Orders (SHPO)

The SHPO is a preventative order designed to protect the public from sexual harm.  This order replaces Sexual Offences Prevention Orders (SOPO) and Foreign Travel Orders (FTO) provided for in sections 104, 105 and 114 of the Sexual Offences Act 2003 (“the 2003 Act”).

The SHPO replaces SOPO and incorporates elements of FTO. The main differences between SHPO and SOPO are:

• the threshold test for a SOPO is a risk of “serious sexual harm” whereas the threshold test for an SHPO is a risk of “sexual harm”
• in relation to children and vulnerable adults, an SHPO can be granted to protect them from sexual harm outside the UK
• the court will be able to impose conditions which prohibit foreign travel as part of an SHPO without the need for an application for a separate FTO.

Sexual Risk Orders (SRO)

The SRO is a civil preventative order designed to protect the public from sexual harm, and unlike SHPOs there is no need for a previous conviction or equivalent.

The order will be available in Scotland and replaces the Risk of Sexual Harm Orders (RSHO) provided for in sections 2 to 8 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 and FTOs provided for in section 114 of the 2003 Act. The SRO replaces RSHO and incorporates elements of FTO.

The main differences between an SRO and an RSHO are:

• only one sexual act (irrespective of timing) will suffice to start an application for an SRO, whereas two acts were required for an RSHO and the application had to be within three months of the second act being brought to the attention of the police (unless the sheriff considered it equitable to allow an application to be made later)
• whereas RSHOs provide statutory protection to children under 16 only, SROs provide protection to children and adults
• SROs may be granted to protect children and vulnerable adults from harm occurring outside the UK
• SROs may be granted to protect a person from harm caused by another person doing an “act of a sexual nature”, whereas the approach for RSHOs was to list particular sexual activities or communications which might result in an order being granted. This widens the scope of the protection, giving the court more discretion to determine the sorts of activities which pose a sexual risk requiring an order to be granted
• the court may impose conditions which prohibit foreign travel without the need for a separate FTO.

More information

If you have any questions about these changes please contact:
Wendy Dalgleish, Head of Civil and Children’s Legal Assistance

E: dalgleishwe@slab.org.uk

Kingsley Thomas, Head of Criminal Legal Assistance
E: thomaski@slab.org.uk