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Criminal Law Legislation Update

Criminal Law Legislation Update

The Journal of Criminal Law 1–3 ª The Author(s) 2015 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/0022018315593416 clj.sagepub.com

As at 1 June 2015 Joanne Clough Northumbria University, UK

Sexual Offences Sentencing On 8 March 2015, the Anti-Social Behaviour, Crime and Policing Act 2014 (Commencement No. 8, Saving and Transitional Provisions) Order 2015 (SI 2015/373) brought ss 113–115 of the Anti-Social Behaviour, Crime and Policing Act 2014 into force. This has the effect of amending the Sexual Offences Act 2003 so as to repeal Sexual Offence Prevention Orders, Foreign Travel Orders and Risk of Sexual Harm Orders, and replace these with two new civil orders relevant to sexual offenders and those who pose a risk of harm: Sexual Harm Prevention Orders and Sexual Risk Orders.

Sexual Harm Prevention Orders Sexual Harm Prevention Orders (SHPOs) are designed to protect the public by placing restrictions on the behaviour of offenders who have been convicted of a sexual or violent offence and who pose a risk of sexual harm to the public. The relevant legislation governing these orders is contained in new ss 103A– 103K of the Sexual Offences Act 2003. According to s. 103A of the Sexual Offences Act 2003 (SOA 2003), a court may make a sexual harm prevention order when dealing with a defendant in respect of any offence listed in Sched. 3 or 5 to the SOA 2003 (including findings in relation to offenders lacking capacity for such offences). The court must be satisfied that it is necessary to make such an order for the purpose of protecting the public or any particular members of the public from sexual harm from the defendant in the UK, or to protect children or vulnerable adults, or particular children or vulnerable adults, from sexual harm from the defendant outside the UK. A magistrates’ court (or youth court, if the defendant is aged under 18 years) may also make an SHPO on application by a chief officer of police or the Director General of the National Crime Agency (s. 103A(4)). In such a case, it must be proved that the defendant is a qualifying offender and that the person has acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made. Section 103J requires the Secretary of State to issue guidance to chief officers of police and the Director General of the National Crime Agency in relation to their powers regarding sexual harm prevention orders. The effect of an SHPO, which can be a full or interim order, is to prohibit the offender from doing anything described within the order (s. 103C(1)). The prohibitions stated within the order must be necessary to protect the UK public, or children or vulnerable adults abroad, from sexual harm by the offender. Such prohibitions may include prevention of foreign travel to a country or countries specified in the order (s. 103D), in which case the offender must surrender their passport for the duration of the prohibition (s. 103D(4)). A prohibition on foreign travel must be for a fixed period of no more than five years (s. 103D(1)). The SHPO will require the offender to become subject to notification requirements under

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The Journal of Criminal Law

Part 2 of the SOA 2003 (where he/she is not already subject to them) for the duration of the order. The minimum duration for a full SHPO is five years (s. 103C(2)) and there is no maximum period (note however the maximum period for a restriction on foreign travel). The defendant may appeal against the making of an SHPO to the Crown Court (s. 103 H). A court can vary, renew or discharge an SHPO upon application from the defendant named in the order or from the police. The application must be made to the court that made the order, any court in the area where the applicant resides, or in the case of an application made by the police, to any court whose area includes any part of the police area of the chief officer concerned (s. 103E). An order cannot be discharged before the end of the five years from the date that the order was made without the consent of the offender and the police (with the exception of an SHPO which contains only a foreign travel restriction) (s. 103E(7)–(8)). A person who breaches the restrictions contained in a full or interim SHPO without reasonable excuse, is committing a criminal offence (s. 103I(1)). The offence is triable either way with a maximum sentence of five years’ imprisonment, or an unlimited fine or both (s. 103I(3)). An order for a conditional discharge is not permitted in respect of this offence (s. 103I(4)).

Sexual Risk Order Sexual Risk Orders (SROs) are civil orders that can be obtained by the police against an individual who has not been convicted or cautioned of a Sched. 3 or Sched. 5 offence, but who is thought to pose a risk of sexual harm to the public. The relevant legislation in respect of these orders is contained in ss 122A– 122K of the SOA 2003. This order replaces the Risk of Sexual Harm Order (now repealed). Under s. 122A, a chief officer of police or the Director General of the National Crime Agency may apply to a magistrates’ court for an SRO if the defendant (in respect of whom the order is being made) has done an act of a sexual nature, as a result of which the police or National Crime Agency have cause to believe that an SRO is necessary (s. 122A(1)–(2)). The court may make such an order if it is satisfied that the defendant has done an act of a sexual nature, whether before or after commencement of this section, which makes it necessary to make an SRO for the purpose of protecting the public (or particular members of the public) from harm from the defendant, or for protecting children or vulnerable adults (or particular children or vulnerable adults) from harm from the defendant abroad (s. 122A(6)). Section 122J requires the Secretary of State to issue guidance to chief officers of police and the Director General of the National Crime Agency in relation to their powers to apply for sexual risk orders. An SRO can include any prohibition which the court considers necessary to achieve one or both of the purposes stated in s. 122A(6) and this can include prevention of foreign travel to any country or countries specified in the order (s. 122C). If the order prevents foreign travel, the defendant must surrender their passport to the police for the duration of the prohibition (s. 122C(4)). An order will last a minimum of two years, with no maximum period specified in the legislation (with the exception of foreign travel prohibitions, which may only be for a maximum of five years). Any defendant who is made subject to an order must notify the police of their name and address (including any subsequent changes of this information) within three days of the making of the order (s. 122F). The defendant may appeal against the making of an SRO to the Crown Court (s. 122G). An ‘appropriate court’ (as defined in s. 122D(7)) can vary, renew or discharge an order upon application by the defendant or the police (s. 122D). The court cannot discharge an order within two years of the order being made without the consent of the defendant and the police (s. 122D(5)). It is a criminal offence to breach a restriction placed within an SRO without reasonable excuse (s. 122 H). This is an either-way offence, which is punishable with a maximum penalty of five years’ imprisonment, an unlimited fine or both. Breaching an SRO also results in the defendant becoming subject to notification requirements for registered sex offenders for the remainder of the order (s. 122I). Full and detailed guidance on the whole of Part 2 of the SOA 2003, which includes guidance on these new orders, has been prepared by the Home Office and is available on their website.

Clough

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Financial Penalties in the Magistrates’ Court On 12 March 2015, ss 85(1), (2) and (4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force following parliamentary approval of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 11) Order 2015 (SI 2015/504). This has the effect of removing the upper limit on some fines in the magistrates’ court. Offences committed on or after 12 March 2015 which are sentenced on summary conviction and which are punishable by a fine of £5,000 or more (whether that is expressed as a fine of £5,000, a level 5 fine or a fine of £10,000 for example) will now be punishable by an unlimited fine. Any offence subsequently created and which is punishable on summary conviction by a fine of £5,000 or more shall now be created to be punishable on summary conviction by ‘a fine of any amount’. This amendment does not affect fines imposed on offenders under the age of 18 years and cases committed for sentence. In addition, any offences listed within Sched. 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 (SI 2015/664) will remain exempt from the changes. These crimes mainly relate to customs offences under the Customs and Excise Management Act 1979, the Alcoholic Liquor Duties Act 1979, the Betting and Gaming Duties Act 1981 and the Finance Act 1993, to name but a few. These listed offences are all now punishable with a fine of up to £20,000 thus ensuring that the fines are no longer calculated with reference to the value of the offence, but instead have a numerical value rather than an unlimited financial penalty.

Declaration of Conflicting Interests The author declares that there are no conflicts of interest.

Funding This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.