Sexual Risk Orders: Lowering the Standard

Sexual Risk Orders (‘SRO’) under section 122A of the Sexual Offences Act 2003 (‘the 2003 Act’) were introduced in 2015 by the Anti-Social Behaviour, Crime and Policing Act 2014. Unlike the similar Sexual Harm Prevention Orders introduced at the same time, SROs may be obtained without a criminal conviction for a sexual offence. Being civil orders obtained in the Magistrates’ Court the applicant authority (a police force or the National Crime Agency) is able to rely on the admissibility of hearsay evidence under the Civil Evidence Act 1995 (‘the 1995 Act’) and the Magistrates’ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999. However, the Police, Crime, Sentencing and Courts Act 2022 significantly altered the process by amending section 122A(6) to state that the court need only be satisfied on the balance of probabilities that a defendant has done at least one act of a sexual nature as alleged. Previously, the standard of proof had been held to be the criminal standard, though the statute was silent as to the standard required. This amendment took effect on 29 November 2022 and there has already been a noticeable upsurge in the number of applications for these Draconian orders.

Overtime parliament has ensured that SROs have become easier to obtain. An “act of a sexual nature” is not defined by the statute, but the previous requirement for there to be two such acts[1] before an order could be made has been reduced to one, and the previous requirement to prove those acts to the criminal standard reduced despite the dicta in Commissioner of Police of the Metropolis v Ebanks [2012] EWHC 2368 (Admin), and the cases cited therein, pointing to the significant impact of an order upon an individual who may never have been convicted of any sexual offence.

The criteria for making an SRO are contained in section 122A(6) of the 2003 Act. The court must be satisfied that the defendant has committed at least one of the acts of a sexual nature alleged by the applicant, and that as a consequence of its findings it is necessary to make an order for the purpose of either protecting the public, or part of it, from harm from the defendant or protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the UK. In addition, the court may make an interim SRO pending determination of the main application if it is “just to do so”.

SROs are intended to be preventative hence the reason no criminal conviction is required as a condition precedent to the making of an order, but the consequences of an SRO may be punitive and realistically, though not a requirement under the statute,[2] a court must be satisfied that the actus reus of a sexual offence has been committed before it may consider whether it is necessary to make an order for one of the statutory purposes. The stigmatising effect of an SRO cannot be underestimated. 

 An SRO can be life changing containing both injunctive and mandatory requirements, may prohibit foreign travel for up to five years, may impose electronic monitoring, and carries a notification requirement. An SRO must be made for a minimum of two years but may be made to last indefinitely (subject to variation or discharge). Breach of an SRO without reasonable excuse is a criminal offence punishable by up to five years imprisonment. An SRO has the potential to make it virtually impossible for the individual to gain or keep employment or to form a relationship. The individual’s right to privacy and a family life guaranteed by article 8 ECHR may thereby be severely impacted. 

Therefore, without a criminal conviction, a court may make a wide-reaching order which severely restricts the liberty of the individual based on a finding that the individual has committed an act of a sexual nature on the balance of probabilities, and unless challenged, almost certainly based on hearsay evidence rather than a complainant’s oral testimony. 

It is often the case that an applicant may seek an SRO because it is considered that a prosecution is not possible or would be unsuccessful, or because of the ability to rely on hearsay evidence. Those defending applications for SROs should be especially alive to the need for an applicant to serve a compliant hearsay notice which states, inter alia, why a complainant will not be called to give oral evidence (r.3(4)(f)), and the ability of the defendant to make an application to the court for a complainant to be called to be cross-examined (r.4(1)). One should also be alive to the matters that go to the weight of any such hearsay evidence that is adduced under section 4 of the 1995 Act including whether it would have been reasonable and practicable to have called the maker of the statement, whether the account was made in collaboration with another or for a particular purpose, and whether the circumstances in which the hearsay evidence is adduced are such as to suggest an attempt to prevent proper evaluation of its weight. 

Finally, whether the decision of the House of Lords in R (McCann) v Manchester Crown Court and another [2003] 1 AC 787 can be applied to SROs in the light of the lower standard of proof must be open to debate. The Appellate Committee in McCann considered proceedings for anti-social behaviour orders (‘ASBO’) under the Crime and Disorder Act 1998 to be compliant with article 6(1) ECHR. In common with SROs applications for ASBOs did not involve the determination of a criminal charge. However, important to the ratio in McCann was the recognition that the making of such an order was of a serious nature and the holding that the court needed to be satisfied to the criminal standard that the relevant acts had been committed.[3] Now that the standard of proof has been reduced in proceedings for what are far more stigmatising orders usually involving a finding that a criminal sexual act has been committed, it must be questionable whether the procedure for applying for SROs is still compliant with article 6(1) in relation to an individual’s civil rights.

[1] For a Risk of Sexual Harm Order which were the predecessing form of order.

[2] See Chief Constable of Kent Police v Carter [2022] EWHC 1972 (Admin) at [14]

section 1 of the Anti-social, Crime and Policing Act 2014 which replaced ASBOs and which are schematically similar to SROs. The amendment to the 2003 Act therefore brings SROs in line with this similar legislation.

[3] It should, however, be noted that the civil standard of proof applies to the acts relied upon in relation to applications for injunctions under