Sexual Offences Act 2003, section 108

SOPOs: variations, renewals and discharges

Part 2 Notification and orders

(1)A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a sexual offences 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, his police area;

(d)where the order was made on an application under section 104(5), the chief officer of police who made the application.

(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 (6), 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 offences prevention order, that the court considers appropriate.

(5)An order may be renewed, or varied so as to impose additional prohibitions [F332 or requirementsF332] on the defendant, only if it is necessary to do so for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant (and any renewed or varied order may contain only such prohibitions [F332 or requirementsF332] as are necessary for this purpose).

(6)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.

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

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

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

(c)where a youth court made the order, 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 whose commission area includes any part of the chief officer’s police area.

(8)This section applies to orders under—

(a)section 5A of the Sex Offenders Act 1997 (c. 51) (restraining orders),

(b)section F333... 20 of the Crime and Disorder Act 1998 (c. 37) (sex offender orders made in F333... Scotland), and

(c)Article 6 of the Criminal Justice (Northern Ireland) Order 1998 (S.I. 1998/2839 (N.I. 20)) (sex offender orders made in Northern Ireland),

as it applies to sexual offences prevention orders.F325]

Definitions used in section 108 2

sexual offences prevention order

(1) In this Part, “sexual offences prevention order” means an order under section 104 or 105.

Defined in s.106(1) · see it in the full Act

“sexual offences prevention order” has the meaning given by section 106(1);

Defined in s.133(1) · see it in the full Act
court

(2) In sections 92 and 103A(1) of this Act, and section 345 of the Sentencing Code, “court” includes a service court.

Defined in s.137(2) · see it in the full Act

Cases considering section 108 20

R v Nicholas Casey Codd

[2024] EWCA Crim 339 · 22 March 2024Limits

The court confirmed that a SOPO could be varied only on an application by the defendant or a prescribed chief officer of police. The sentencing court could not revoke it of its own motion in these proceedings. (see paras [7]; [9])

Gould & Ors v R.

[2021] EWCA Crim 447 · 30 March 2021

The Crown Court had no power to impose a new sexual harm prevention order following Brown’s breach proceedings because there was no qualifying conviction and no application under section 108. The order was quashed. (see paras [50]; [132])

Rowlett, R v

[2020] EWCA Crim 1748 · 18 December 2020

The court held that this was the sole statutory power to vary the existing SOPO during the transitional period. It could support a variation, but not a replacement of the SOPO with a SHPO. (see paras [23]-[25]; [32]; [36]-[39]) The court treated this subsection as creating the application route for variation, renewal or discharge of a SOPO. The valid application could be treated as one for a SOPO variation despite its mistaken form. (see paras [32]; [35]-[37]) The court held that an application by a person listed in this subsection was a jurisdictional condition. The Chief Constable satisfied that condition, unlike the position in the authority considered. (see paras [34]-[37]) The court treated this subsection as prescribing the mode by which a SOPO variation application was made. Its procedural requirements were satisfied or could be accommodated despite the defective statutory form. (see paras [32]; [35]-[37]) The court held that this paragraph gave procedural primacy to the Criminal Procedure Rules for an application in the Crown Court. The application complied with the relevant rules as to notice and evidence. (see para [35])

What each judgment says about section 108 is in the case-law panel in the full Act.

Explanatory note

221.Section 108 enables either the offender subject to the order or the various chief officers of police listed in subsection (2) to apply for an order to be varied, renewed or discharged.

222.The defendant might, for example, seek to vary an order if he finds the prohibitions are operating on him unduly harshly. He might apply for a discharge if he intended to emigrate. A chief officer of police who believes the defendant is moving to his area might apply for a variation if, for example, the order was made when the defendant was living in another part of the country and only restricted the defendant’s behaviour in that original area.

223.It may also be necessary to seek a renewal of an order at the time an existing order expires, where there is evidence that the defendant still requires the measures of restraint imposed in the original order.

224.Subsection (8) provides that the procedure in this section will apply where variations, renewals and discharges are sought in respect of restraining orders and sex offender orders made prior to the commencement of this Part of the Act.

All the explanatory notes for the Act

Amendments and notes

3 notes from legislation.gov.uk

Amendments

  1. F325Ss. 104-109 repealed (S.) (31.3.2023) by Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), ss. 39(1)(a), 45(2)(3) (with ss. 40(2)-(4), 44); S.S.I. 2023/51, reg. 2 (with reg. 3)
  2. F332Words in s. 108(5) inserted (N.I.) (24.6.2014) by Criminal Justice Act (Northern Ireland) 2013 (c. 7), ss. 5(3), 15(2)(c); S.R. 2014/179, art. 2(c)
  3. F333Words in s. 108(8)(b) omitted (8.3.2015) by virtue of Anti-social Behaviour, Crime and Policing Act 2014 (c. 12), s. 185(1), Sch. 11 para. 60 (with ss. 21, 33, 42, 58, 75, 93); S.I. 2015/373, art. 2(g)(i)