Sexual Offences Act 2003, section 122A

Sexual risk orders: applications, grounds and effect

Part 2 Notification and orders

[F389 (1) A person mentioned in subsection (1A) (“the applicant”) may by complaint to a magistrates’ court apply for an order under this section (a “sexual risk order”) in respect of a person (“the defendant”) if it appears to the applicant that the condition in subsection (2) is met.

(1A)Those persons are—

(a)a chief officer of police;

(b) the Director General of the National Crime Agency (“the Director General”);

(c)the chief constable of the British Transport Police Force;

(d)the chief constable of the Ministry of Defence Police.F389]

(2)The condition is that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made.

[F390 (2A)If a list has been published under section 172 of the Police, Crime, Sentencing and Courts Act 2022 (list of countries where children are at high risk of sexual abuse or sexual exploitation) and has not been withdrawn, a person mentioned in subsection (1A) must have regard to the list in considering—

(a)whether as a result of the act mentioned in subsection (2) there is reasonable cause to believe that it is necessary for a sexual risk order to be made for the purpose of protecting children generally, or any particular children, from harm from the defendant outside the United Kingdom, and

(b)whether to apply for a prohibition on foreign travel (see section 122C) to be included in any such order for that purpose.F390]

(3)A chief officer of police may make an application under subsection (1) only in respect of a person—

(a)who resides in the chief officer's police area, or

(b)who the chief officer believes is in that area or is intending to come to it.

(4)An application under subsection (1) may be made to any magistrates' court acting for a local justice area that includes—

(a)any part of a relevant police area, or

(b)any place where it is alleged that the person acted in a way mentioned in subsection (2).

[F391 (5)If the Director General, the chief constable of the British Transport Police Force or the chief constable of the Ministry of Defence Police makes an application under subsection (1), that person must as soon as practicable notify the chief officer of police for a relevant police area of that application.F391]

[F392 (6)On an application under subsection (1), the court may make a sexual risk order if—

(a)the court is satisfied on the balance of probabilities that the defendant has, whether before or after the commencement of this Part, done one or more of the acts of a sexual nature alleged by the person making the application, and

(b)the court is satisfied that as a result of the defendant acting in such a way it is necessary to make such an order for the purpose of—

(i)protecting the public or any particular members of the public from harm from the defendant, or

(ii)protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.F392]

[F393 (6A)If a list has been published under section 172 of the Police, Crime, Sentencing and Courts Act 2022 and has not been withdrawn, the court must have regard to the list in considering—

(a)whether a sexual risk order is necessary for the purpose of protecting children generally, or any particular children, from harm from the defendant outside the United Kingdom, and

(b)in particular, whether a prohibition on foreign travel (see section 122C) is necessary for that purpose.F393]

[F394 (7)A sexual risk order may—

(a)prohibit the defendant from doing anything described in the order;

(b)require the defendant to do anything described in the order.F394]

(8)A sexual risk order may specify[F395 —

(a)has effect for a fixed period (not less than 2 years) specified in the order or until further order, and

(b)may specify different periods for different prohibitions or requirementsF395] .

(9)The only prohibitions [F396 or requirementsF396] that may be imposed are those necessary for the purpose of—

(a)protecting the public or any particular members of the public from harm from the defendant, or

(b)protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.

[F397 (9A)The prohibitions or requirements which are imposed on the defendant by a sexual risk order must, so far as practicable, be such as to avoid—

(a)any conflict with the defendant’s religious beliefs,

(b)any interference with the times, if any, at which the defendant normally works or attends any educational establishment, and

(c)any conflict with any other court order or injunction to which the defendant may be subject (but see subsection (10)).F397]

(10)Where a court makes a sexual risk order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.

Definitions used in section 122A 4

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
sexual risk order

“sexual risk order” has the meaning given by section 122A(1);

Defined in s.133(1) · see it in the full Act
prohibition on foreign travel

“prohibition on foreign travel” has the meaning given by section 103D(2) or 122C(2);

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

“specified”, in relation to an offender supervision requirement, means specified in the requirement.

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

Cases considering section 122A 8

Mayne, R. v

[2021] EWCA Crim 737 · 27 April 2021Limits

The court considered the sentence for breach of an order made under this provision. It stressed that a person subject to a sexual risk order may not have been convicted of a sexual offence, which affects the appropriate use of analogous sentencing guidance. The court identified the statutory threshold for making a sexual risk order: an act of a sexual nature and necessity to protect the public or particular members of the public from harm. The protective purpose informed the assessment of the appellant’s breach. The court noted that only prohibitions necessary to protect the public or particular persons from harm may be imposed. It warned that a very broad child-contact prohibition required careful consideration of its wording and proportionality.

CHIEF CONSTABLE OF KENT POLICE v PHILIP CARTER

[2022] EWHC 1972 (Admin) · 5 July 2022Limits

Applies the statutory gateway for an application by a chief officer of police for a sexual risk order where the statutory condition appears to be met. The court treated the provision as requiring proof of an act of a sexual nature, not proof of a criminal offence (see paras [13], [20]). Interprets the statutory condition as requiring proof to the criminal standard that the respondent has done an act of a sexual nature. It does not require proof that the respondent committed a criminal offence (see paras [13], [15], [20]). Confirms the jurisdictional provision governing the magistrates’ court to which an application may be made. The judgment did not otherwise construe this subsection (see para [13]). Applies the requirement that an order may be made only where it is necessary to protect the public or specified children or vulnerable adults from harm. The necessity issue was remitted for determination on the balance of probabilities (see paras [13], [28], [30]). Confirms that a sexual risk order imposes specified prohibitions for a fixed period or until further order. The judgment left the content and duration of any order to the magistrates on remittal (see paras [13], [28], [30]). Applies the limitation that only prohibitions necessary for the statutory protective purposes may be imposed. Whether the proposed prohibitions exceeded what was necessary was remitted to the fresh bench (see paras [13], [28], [30]).

ANDERSON PINHEIRO (R on the application of) v NORTH TYNESIDE MAGISTRATES COURT & Anor

[2022] EWHC 1176 (Admin) · 17 May 2022Interprets

The judgment treated the substantive sexual risk order criteria as the relevant criteria for assessing an interim order, including whether an act of a sexual nature had occurred and whether protection from harm was necessary. The Crown Court had properly addressed those criteria. (see paras [14], [23]-[26]) The judgment confirmed that necessity under the substantive regime was relevant to whether an interim sexual risk order could properly be upheld. The evidence supported necessity to protect young women from harm arising from further conduct of a sexual nature. (see paras [14], [24]-[27]) The judgment accepted that the relevant protected public consisted of young women exposed to grooming, recruitment, trafficking for sexual exploitation, or sexual assault. The Crown Court’s protective assessment was legally and evidentially justified. (see paras [14], [24]-[26])

What each judgment says about section 122A is in the case-law panel in the full Act.

Amendments and notes

9 notes from legislation.gov.uk

Amendments

  1. F389S. 122A(1)(1A) substituted for s. 122A(1) (29.11.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 171(10), 208(1); S.I. 2022/1227, reg. 3(d)
  2. F390S. 122A(2A) inserted (29.11.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 173(7)(a), 208(1); S.I. 2022/1227, reg. 3(f)
  3. F391S. 122A(5) substituted (29.11.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 171(11), 208(1); S.I. 2022/1227, reg. 3(d)
  4. F392S. 122A(6) substituted (29.11.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 174(3), 208(1); S.I. 2022/1227, reg. 3(g)
  5. F393S. 122A(6A) inserted (29.11.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 173(7)(b), 208(1); S.I. 2022/1227, reg. 3(f)
  6. F394S. 122A(7) substituted (29.11.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 176(2)(a), 208(1); S.I. 2022/1227, reg. 3(i)
  7. F395S. 122A(8)(a)(b) substituted for words in s. 122A(8) (29.11.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 176(2)(b), 208(1); S.I. 2022/1227, reg. 3(i)
  8. F396Words in s. 122A(9) inserted (29.11.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 176(2)(c), 208(1); S.I. 2022/1227, reg. 3(i)
  9. F397S. 122A(9A) inserted (29.11.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 176(2)(d), 208(1); S.I. 2022/1227, reg. 3(i)