205.Section 104 states the circumstances in which a sexual offences prevention order may be made against an offender. Sexual offences prevention orders are civil preventative orders designed to protect the public from serious sexual harm. These orders replace, with amendments, restraining orders and sex offender orders (provisions in relation to which are found at section 5A of the 1997 Act and sections 2 to 4 and section 20 of the 1998 Act respectively in relation to England, Wales and Scotland, and at Article 6 and 6A of the Criminal Justice (Northern Ireland) Order 1998).
206.A court may make a sexual offences prevention order:
when it deals with a person in respect of an offence listed at Schedule 3 or Schedule 5 to the Act, or, in the case of a mentally incapacitated offender, deals with him in respect of a finding relating to such an offence; or
(in the case of a magistrates’ court) when an application for such an order is made to it by a chief officer of police in respect of a person, and it is satisfied that:
the person has been dealt with by a court in respect of an offence listed in Schedule 3 (other than at paragraph 60) or at Schedule 5; or has been dealt with by a court abroad in respect of an act which was an offence under the law of that territory and which would, if committed in any part of the UK, have constituted an offence listed in Schedule 3 (other than at paragraph 60) or at Schedule 5; and that
the person’s behaviour, since the date on which he was first dealt with in this way, means it is necessary to make the order “for the purpose of protecting the public or any particular members of the public from serious sexual harm from the offender”.
207.A chief officer of police may only make an application to a magistrates’ court as described above if two conditions are met. These conditions are:
that the person has been dealt with in respect of an offence listed at Schedule 3 (other than at paragraph 60 of that Schedule) or at Schedule 5, or has been dealt with abroad in respect of an act which constituted an offence under the law of the territory in question, and which would, if committed in the UK, have constituted an offence listed at Schedule 3 (other than at paragraph 60) or at Schedule 5; and
that the person’s behaviour, since the first date on which he was dealt with in this way (this will be relevant if for example an offender has been convicted of several offences listed in Schedule 3), gives rise to reasonable cause to believe that it is necessary for such an order to be made.
208.The offences in Schedule 3 are all sexual offences, some of which are subject to thresholds in relation to age and sentence, below which the offence will not trigger a sexual offences prevention order. The offences in Schedule 5 are violent offences and various offences under this Act relating to trafficking and prostitution and child pornography. Schedule 5 includes murder as well as all the offences in Schedule 15 of the Criminal Justice Act 2003, which relates to the provisions in that Act dealing with “dangerous offenders”.
209.In its application to Scotland, section 104 essentially allows a chief constable to make an application for such an order in respect of persons convicted in the UK of a sexual offence set out in Schedule 3 (other than at paragraph 60 of that Schedule) or, where the person has a conviction from England, Wales or Northern Ireland, in respect of offences set out in paragraphs 1 to 63 of Schedule 5.
210.The term “protecting the public in the United Kingdom or any particular members to the public from serious sexual harm from the defendant” is defined in subsection (3) of section 106. The court may be satisfied of this necessity either by the circumstances of the offence or from other evidence of the defendant’s behaviour.
211.An example of when the police might apply for a sexual offences prevention order is as follows. An offender has a conviction for sexual activity with a child and has been released after his term of imprisonment. Following his release he behaves in a way that suggests he is likely to offend again, for example by loitering around schools or inviting children back to his house. An application for a sexual offences prevention order is to be made by complaint. This is a civil procedure and the relevant procedure is set out at sections 51 to 57 of the Magistrates’ Courts Act 1980.