(4) SERVICE SEXUAL OFFENCES PREVENTION ORDERS
1.30 Clause 17 of the Bill extends the power of Courts
Martial to make Sexual Offences Prevention Orders (SOPO) in relation
to persons who pose a risk of sexual harm while part of the armed
forces community overseas. SOPO are Orders created under the Sexual
Offences Act 2003. They are civil orders, similar to ASBOS or
Violent Offender Orders, which may be sought in connection with
certain sexual offenders. They are imposed on individuals for
a set period of up to 5 years and can impose restrictions on their
behaviour, subject to criminal sanction for breach of any order.[26]
1.31 Orders of this type engage both the right to
respect for private life (Article 8 ECHR) and may also engage
the right to a fair hearing (Article 6 ECHR). In order to ensure
compatibility with the right to a fair hearing, the standard of
proof applied on application for these type of orders is generally
the enhanced civil standard, which is virtually indistinguishable
from the criminal standard (proof beyond reasonable doubt) (McCann
v Crown Court at Manchester [2002] UKHL 39). When the Courts
Martial make an Order immediately following a conviction, they
will have made a finding in connection with the guilt of the defendant
and there are safeguards limiting the orders to those necessary
for the purposes of protecting the service community from serious
harm. In these circumstances, in our view, the provisions will
be capable of being applied in a way which is compatible with
the right to a fair hearing (Article 6 ECHR) and the right to
respect for private life (Article 8 ECHR). There will be no serious
risk of a violation, if the restrictions in the proposed orders
are necessary and proportionate. However, the Orders are
renewable after 5 years. In these circumstances, the trigger
offence will be over 5 years old.[27]
The Court may also make a SOPO in circumstances where an individual
is deemed unfit to stand trial or deemed not guilty for reasons
of insanity (these criteria mirror the provisions in the Sexual
Offences Act 2003). In these circumstances, while the Court will
be asked to impose an order restricting an individual's behaviour,
which if breached will be an offence, there may have been no determination
that the individual has been responsible for behaviour which gives
rise to a risk of criminal offending.
1.32 We wrote to the Minister seeking confirmation
that the Government considered that any SOPO or variation of a
SOPO, where based on an assessment of relevant factual information,
would be made after an assessment of the facts based on the criminal
standard of proof ("beyond reasonable doubt").[28]
In his response, the Minister confirms that the making or variation
of any SOPO will be subject to the criminal standard of proof
following the relevant domestic case law on civil orders relating
to potentially criminal conduct.[29]
The Minister does not consider that it is necessary that this
is made clear on the face of the Bill, given that the standard
is not mentioned in relation to other similar statutory provisions,
including in the Sexual Offences Act 2003. He explained:
[T]he courts have addressed the issue of the standard
of proof and it is now clear that the criminal standard applies
to the determination of relevant facts in all civil orders of
this type. The MOD does not therefore consider that it would
be helpful to mention the standard of proof on the face of the
Bill.[30]
1.33 We
welcome the Minister's reassurance that it is the Government's
intention that the criminal standard should be applied.
However, in our view, statutory provisions for civil orders of
this type should make clear that the criminal standard should
apply, in order to enhance legal certainty.[31]
We recommend
that, for the avoidance of doubt, the Bill should be amended to
make clear that the criminal standard should apply to any factual
determinations necessary for the making or variation of any service
sexual offences prevention order.
26 Sections 104-115. Back
27
Clause 17, New section 232A(3), Armed Forces Act 2006. Back
28
Ev 3 Back
29
Ev 4 Back
30
Ev 4 Back
31
This was frequently recommended by our predecessor Committee:
see, for example, Fifteenth Report of 2008-09, para 1.33 (Gangs
Injunctions); Fifth Report of 2007-08, para 1.95 (Violent Offender
Orders). Back
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