Policy paper

Sex offender management: Police, Crime, Sentencing and Courts Act 2022 factsheet

Updated 20 August 2022

1. What are we going to do?

The Act strengthens the system for managing the risk posed by registered sex offenders and any individual who poses a risk of sexual harm by:

• enabling the courts to impose positive requirements on those who pose a risk of sexual harm via Sexual Harm Prevention Orders (SHPOs) and Sexual Risk Orders (SROs) including making explicit in legislation that the court may impose electronic monitoring requirements
• streamlining the process for making individuals who have committed sexual offences overseas subject to the notification requirements for registered sex offenders
• specifying that the court should apply the lower civil standard of proof when considering an application for a SHPO or SRO
• ensuring that Scottish SHPOs and SROs are fully enforceable in England and Wales and that orders made in one jurisdiction (either England and Wales, Scotland or Northern Ireland) can be varied, renewed or discharged in another
• conferring a power on the Secretary of State to prepare a list of countries deemed to be at “high risk” of child sexual abuse by UK nationals or residents which must be considered when a court makes a SHPO or SRO
• enabling the British Transport Police (BTP) and Ministry of Defence Police (MDP) to directly apply to the court for a SHPO or SRO, and
• ensuring that in cases of arranging or facilitating the sexual abuse of children where the age of the victim (intended or actual) is under 13, the additional vulnerability of the victims is properly factored in to sentencing outcomes

2. How are we going to do it?

The Act provides for the following:

2.1 Sexual Harm Prevention Orders and Sexual Risk Orders – positive obligations etc

The Act strengthens the civil orders which can be imposed on convicted sex offenders and on those who pose a risk of sexual harm, the Sexual Harm Prevention Order (SHPO) and Sexual Risk Order (SRO), to:

• enable the courts to impose positive obligations on offenders where appropriate, for example, requiring an individual to engage in a behaviour change programme
• make explicit in legislation that the court may impose a requirement for those subject to SHPOs and SROs to wear an electronic monitoring tag (to monitor their compliance with conditions in the order)
• specify that the court should apply the lower civil standard of proof (‘balance of probabilities’) when determining whether the individual the application is made in respect of has done the act in question
• ensure that Scottish SHPOs and SROs are fully enforceable in England and Wales and that orders made in one jurisdiction (either England and Wales, Scotland or Northern Ireland) can be varied, renewed or discharged in another jurisdiction
• confer a power on the Secretary of State to prepare (or direct a relevant person, such as the National Crime Agency (NCA), to prepare) a list of countries deemed to be at “high risk” of CSA by UK nationals/residents, to be considered by applicants and the courts when applying for, or making, a SHPO or SRO, for the purpose of protecting children outside the UK from the risk of sexual harm from the respondent, and
• enable the British Transport Police (BTP) and Ministry of Defence Police (MDP) to directly apply to the court for an SHPO or SRO.

2.2 Notification requirements – offences committed overseas

The Act removes the requirement for the police to apply to the courts for a Notification Order and enables them to directly make an individual who committed a relevant offence overseas and is in England and Wales subject to the notification requirements.

2.3 Prescribed police stations

Registered sex offenders must notify personal details at specific police stations which are currently prescribed in regulations. The Act removes this requirement and enables Chief Constables to directly set out the police stations at which registered sex offenders must notify their details.

2.4 Arranging or facilitating commission of a child sex offence

This provision amends section 14 of the Sexual Offence Act 2003 to close a gap in criminal law by broadening the range of offences that are explicitly referenced to include those that deal specifically with child sex offences where the victim (intended or actual) is under 13.

This means that in the case an individual arranges or facilitates the sexual abuse of a child under 13, the heavier sentence ranges, acknowledging the even greater vulnerability of the victim, will be appropriately factored in to sentencing considerations.

3. Background

3.1 Notification requirements

Qualifying offenders are required to notify their personal details to the police. This system is often referred to as the ‘sex offenders’ register’ and requires offenders to provide their local police station with a record of (amongst other things) their: name, address, date of birth and national insurance number. This is done annually and whenever their details change.

The notification requirements are an automatic consequence of a finding, conviction or caution (for an offence under Schedule 3 to the Sexual Offences Act 2003), but the length of time an offender will be subject to the requirements will vary dependent upon the sentence they are given. Breach of the notification requirements is a criminal offence punishable by up to five years’ imprisonment.

3.2 Sexual Harm Prevention Orders and Sexual Risk Orders

SHPOs and SROs were introduced through the Anti-social Behaviour, Crime and Policing Act 2014. An SHPO can be applied to anyone convicted or cautioned for a sexual or violent offence who poses a risk of sexual harm to the public in the UK and/or children or vulnerable adults abroad. An order may be made either by a court on conviction, or by a magistrates’ court on application by the police or National Crime Agency.

An SRO may be imposed on a person without a conviction but who poses a risk of sexual harm. Both orders can prohibit the person from doing anything the court considers necessary for protecting the public from sexual harm – this may include preventing foreign travel. The courts do not currently have an explicit ability to impose positive requirements through these orders. The changes introduced by this Act will enable them to do this.

Currently, the British Transport Police and Ministry of Defence Police are not able to apply for a SHPO or SRO. Instead, they must apply to the relevant territorial police force. The changes made by this Act enable both forces to apply directly to the court for these orders, saving time and resources.

3.3 List of countries at high risk of CSA by UK nationals and residents

The Independent Inquiry into Child Sexual Abuse (IICSA) in its report “Children Outside the United Kingdom Report”, published January 2020, recommended that the Home Office bring forward legislation providing for the establishment and maintenance by the NCA of a list a of countries where children are considered to be at high risk of sexual abuse and exploitation from overseas offenders.

IICSA considered that such a list may help applicants and the courts in considering whether it is necessary and appropriate to apply for or make a SHPO or SRO to prohibit foreign travel.

The Home Office accepted this recommendation, in the interests of making available powers as robust as possible. The provision will form part of the broader strategy and processes in place for managing the risk posed overseas by registered sex offenders. This includes the notification requirements, further civil order restrictions, dissemination of risk relevant information to other countries and capacity building overseas.

3.4 Notification requirements – offences committed overseas

Currently, where an offender has a finding, conviction or caution for a sexual offence committed abroad (including British nationals or foreign nationals who now reside in the UK) the police can apply to the courts for a Notification Order. This order makes the offender subject to the notification requirements as if they had been convicted in England and Wales for an offence under Schedule 3 to the Sexual Offences Act 2003. The changes in this Act remove the requirement for the police to apply to the court for an order and enable them to make relevant offenders subject to the notification requirements directly.

3.5 Prescribed police stations

Registered sex offenders required to notify the police of their personal details must provide this information in person at a prescribed police station as defined in section 87 of the Sexual Offences Act 2003. The list of prescribed stations is currently maintained by the Secretary of State and provided for in secondary legislation. The list is currently provided to the Home Office by the police – this change will remove the requirement for the list to be set out in secondary legislation and enable the police to determine and maintain local lists directly, simplifying the process and giving them greater flexibility to respond quickly to operational changes.

3.6 Arranging or facilitating commission of a child sex offence

Child Sexual Exploitation and Abuse (‘CSEA’) is a large-scale crime with pernicious harms that requires action. In the 2019 Crime Survey for England and Wales (CSEW), 7.5% of adults aged 18-74 reported experiencing any sexual abuse during childhood.

The Sexual Offences Act 2003 (the ‘2003 Act’) contains a number of specific child sex offences. Under the provisions of the Criminal Attempts Act 1981, attempting to commit any of these offences is also an offence in itself. The 2003 Act goes further and provides, at section 14, that it is also an offence to undertake acts preparatory to one of the offences in sections 9 to 13 (sexual activity with a child etc.). However, the section 14 offence of arranging or facilitating the commission of a child sex offence previously did not apply to the child sex offences in sections 5 to 8 of the 2003 Act (rape and other offences against children under 13).

Under previous legislation, sentencing for preparatory CSEA offences relating to victims under the age of 13 is treated the same as for victims over 13. As such, sentence severity did not reflect the higher harm caused by the targeting of victims under 13. This was inconsistent with sentencing powers for other CSEA offence types.

4. Frequently asked questions 

4.1 What sort of positive requirements may the courts impose?

Positive requirements may include, for example, requiring an individual to take part in a behaviour change programme or alcohol or drug treatment programme, or to take a polygraph test.

4.2 Will electronic monitoring be used for every sex offender on a civil order?

No. Whether electronic monitoring is imposed will be dependent on the individual case and whether the court considers this necessary for the purposes of protecting the public from sexual harm.

4.3 Will using electronic monitoring increase the cost of the orders?

Electronic monitoring conditions can already be imposed by SHPOs and SROs. This change will clarify and simplify the process for the courts. We therefore do not anticipate any significant change in costs.

4.4 How have you come up with the criteria to select which countries will be on the list?

The NCA is developing the list in consultation with key stakeholders on the basis of identified vulnerability factors, using a range of open source and operationally sensitive intelligence.

4.5 What will the ability to enforce civil orders made in other jurisdictions achieve?

Civil orders, including SHPOs and SROs, made in England & Wales, Scotland or Northern Ireland will be fully reciprocal within other UK jurisdictions. A breach of a civil order which takes place in England, Wales, Scotland or Northern Ireland will constitute a criminal offence in those jurisdictions, regardless of the jurisdiction in the UK in which the order was made.

4.6 Where will the list of prescribed police stations be published?

The Act will require the chief officer to publish the prescribed police stations list for their force in such a manner they think fit, e.g. on the police force’s website. The document published by the chief officer will include the name and address of each prescribed police station in that area.

4.7 What will publishing a list of high risk countries achieve?

IICSA considered that a list of countries at high risk of CSEA by UK nationals and residents was necessary to increase the number of foreign travel restrictions imposed via SHPOs and SROs. The list may help applicants and the courts in considering whether it is necessary to apply for or make these orders to restrict foreign travel of registered sex offenders and those who pose a risk of sexual harm.

4.8 What will be the benefits of allowing BTP and MDP to directly apply for orders?

BTP and MDP will be able to apply for an order directly without having to go via a local police force, saving time and resources.

4.9 What are the sentence ranges for the underlying, substantive offences reference by the amended section 14 (that is, sections 5 to 12)?

The starting points and ranges vary but assuming the highest levels of Harm and Culpability (category 1A offences) the minimal set is for section 12, ‘causing a child to watch a sexual act,’ is a range of 3 to 6 years custody and a starting point of 4 years. The maximal set would be for section 5, ‘rape of a child under 13,’ with a range of 13 to 19 years and a starting point of 16 years.

4.10 How will removing the need for a Notification Order improve the current system?

The changes made by this Act remove the requirement for the police to apply to the court for a Notification Order and enable them to make relevant offenders with a finding, conviction or caution for a sexual offence committed abroad subject to the notification requirements directly. This will simplify the process.