The guidance is non-statutory and should not be regarded as authoritative legal advice. Should you have any queries about this document please contact: The Sex Offender Strategy Team Police Division Scottish Government St Andrew’s House Edinburgh EH1 3DG (T): 01 8.
The Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (“the 2005 Act”), which came into force on 7 October 2005, extended the use of SOPOs so that they could be imposed on those convicted of sex offences by the courts when they are sentenced. The Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011 (SSI 2011/45) (“the Remedial Order”), which came into force on 28 January 2011, and introduced a mechanism by which Scottish police forces must periodically review whether those sex offenders, who are subject to the sex offender notification requirements (SONR) of the 2003 Act for an indefinite period, should remain subject to the SONR also amended the SOPO provisions to provide that, where an offender ceases to be subject to the SONR by virtue of section 88F (review of the indefinite notification requirements: application to a sheriff) or 88G (review of the indefinite notification requirements: appeals), but is also subject to a SOPO that order ceases to have effect. This guidance is intended to familiarise relevant bodies with the SOPO legislation in general and the new provisions in section 100 of the Criminal Justice and Licensing (Scotland) Act 2010 (“the 2010 Act”), in particular.
The 2010 Act further amended the SOPO regime, by allowing for positive obligation SOPO conditions to be imposed as well as prohibitive conditions.
Prior to the 2010 Act changes, the SOPO legislation did not place any responsibility on the offender to comply with the risk assessment process. Adjusting the SOPO regime requiring certain positive actions on the part of offenders addresses that deficiency.
Both the Irving Report and the Report of the Expert Panel on Sex Offending (the Cosgrove Report) commented on the “lack of any requirement on individuals to comply with the risk assessment process and the potential for non-compliance to increase”. It also has the potential to extend the range of information certain relevant sex offenders are required to provide as part of the sex offender notification requirements (commonly known as the sex offenders register).
A SOPO with positive conditions could be useful to the police if they wanted to know more details about a specific offender’s lifestyle, which in turn would mean that the police would have more information to assist in the investigation of offences.
Accordingly, if the police wanted to know if a relevant offender was living in the same household as a child under the age of 18, or wanted to have details of their leisure activities, employment, telephone numbers, or vehicles (and/or access thereto) they could apply for a SOPO with a condition that the offender notify the police of such circumstances and/or details.If the police had concerns about a specific offender who claimed to be homeless, they could place a positive obligation on the offender to report more regularly, or at a specified time, to a prescribed police station.Again this would implement a recommendation of the Irving Report. Of course, a SOPO with either prohibitions or positive conditions would need to be backed up with evidence that demonstrates they are necessary to prevent serious sexual harm. The new provisions in the 2010 Act were commenced by order of the Scottish Parliament with effect from 1 November 2011.Identity No: Police Circular No: 2/2012 Title: Sexual Offences Prevention Orders Addressed to: Chief Constables Chief Executives Dumfries & Galloway Council Fife Council Clerks to the Joint Police Boards Date issued: September 2012 Implementation Date: September 2012 Contact for more information: Ian Fleming Dear Colleague Summary of contents: A guide to Sexual Offences Prevention Orders ('SOPOs') as provided for by Sections 104 – 113 of the Sexual Offences Act 2003.The Guidance, as set out in Annex A, is non-statutory and should, as appropriate, be supplemented with professional legal advice.It identifies the key aspects of SOPOs – what they are, what they do, and how they may be obtained.