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November 19, 2014
OVERVIEW OF TOPIC
1. Sections 114 to 122 of the Sexual Offences Act 2003 (SOA) introduced Foreign Travel Orders (FTO) to assist in the disruption of behaviour of those who sexually offend against children in extra jurisdictional territories. They are civil orders enabling the courts in certain circumstances to prohibit those convicted of the sexual abuse of children under 16 years of age, from travelling overseas, where there is evidence that they intend to cause serious sexual harm to children in a foreign country.
2. S.114 provides that FTOs are available on application by a chief officer of police to a magistrates’ court. The subject of the FTO must either live in, or intend to go to, the chief officer’s local area.
3. These orders are only available if the defendant is a qualifying offender (s.114(1)(a)). This means that he been convicted of (or found or cautioned for) a schedule 3 SOA offence (a comprehensive lists of sexual offences under the SOA) on a child under the age of 16 years. In addition, the defendant must since the date of his conviction have acted in such a way as to give reasonable cause to believe that it is necessary for the order to be made (s.114(1)(b)). A court may only make the order only if it is satisfied that the behaviour since the conviction date makes its imposition necessary for the purposes of protecting children generally, or any child, from serious sexual harm from the defendant outside the United Kingdom (s.11(8)(b)).
4. “Protecting children generally or any child, from serious sexual harm from the defendant outside the United Kingdom” is defined by s.115(2) as protecting persons under 16 years of age, generally, or any particular person under 18 years of age, from serious physical or psychological harm caused by the defendant doing outside the United Kingdom anything which would constitute an offence listed in schedule 3 if done in any part of the United Kingdom.
5. A FTO has effect for a period of not more than 5 years (s.117(1)).
6. A FTO may prohibit a defendant from travelling to any named or described country (s.117(2)(a)), or to any country other than one named or described (s.117(2)(b)) or from travelling outside the United Kingdom (s.117(2)(c)).
7. If a defendant has been made subject to a FTO pursuant to s.117(2)(c), then the order must require him to surrender his passport to a police station (s.117A(1)).
8. The defendant or chief officer of police (the original applicant, chief officer where the defendant then resides if different, or chief officer of an area where the defendant is intending to live) may apply to the court for a variation, renewal or discharge (s.118(1)). Any variation or renewal may only be made if it is necessary to protect children from serious sexual harm from the defendant outside the United Kingdom (s.118(4)).
9. An appeal against the making (or variation/renewal) of a FTO may be made to the Crown Court (s.119) by the defendant.
10. A breach of the order without reasonable excuse is a criminal offence and can be tried either in the Crown Court or the Magistrates’ Court (s.122(1)). The maximum penalty on a summary conviction is 6 months imprisonment and a prison sentence of 5 years on conviction on indictment (s.122(2)).
11. There is no interim FTO available.
12. There are obvious limitations on FTOs, which are demonstrated by the fact that only 50 such orders were issued between 2005 and 2012 (Hansard, 3 Sep 2012: Column 193W). When this number is compared to even the lowest estimates of extra territorial offending by British Nationals, it is clear that these orders are intrinsically flawed.
13.Necessity of a Previous Qualifying Conviction
a. The necessity that a defendant has been convicted for a schedule 3 SOA offence prevents a court from imposing travel restrictions even when the evidence clearly justifies it. Therefore even if an applicant was able to prove to the court that a defendant is at high risk of travelling out of the jurisdiction to abuse children sexually, unless that defendant was appropriately convicted, the court has no power to impose a FTO.
b. Mr Hugh Davies QC OBE and author of Civil Prevention Orders, Sexual Offences Act 2003 published on the 14th May 2013, (available at www.ecpat.org.uk/default/files/the_davies_review.pdf), described this requirement as ‘wholly disproportionate…relative to overwhelming, admissible, evidence of risk of contact offending’ (p.36).
c. The Child Exploitation and Online Protection Agency (CEOP) demonstrates the problem that this requirement causes by way of example. They were made aware of a British National, DS, who repeatedly travelled to Kenyan orphanages to sexually abuse children. DS had been the subject of previous allegations of extra jurisdictional offending, none of which lead to a qualifying conviction. There simply was no power to prevent his travel outside the United Kingdom. This is only a single case amongst many that have been monitored by CEOP that remain outside the remit of a prevention order given this statutory requirement.
14.Action since the date of conviction
a. Somewhat surprisingly a FTO, unlike a Sexual Offences Prevention Order, is not available upon conviction. Even if on the date of conviction the evidence is overwhelming that a defendant has a propensity to sexually abuse children, a chief officer of police must produce further evidence to show that since the conviction the defendant has acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made. The court may only make the order if the defendant’s behaviour since that date makes it necessary for the purpose of protecting children outside the United Kingdom. The reality is that in many situations, such evidence is lacking. A good example of this is where a defendant has been incarcerated, but there is good evidence from before his conviction, or solely due to the nature of the qualifying conviction, that he is a risk to children outside the United Kingdom. In this situation, the authorities are unable to prevent him travelling.
15.Applicant and application
a. The only qualified applicant is a chief officer of police in respect of a person who resides in his police area or who the chief officer believes is in or is intending to come to his police area.
b. This limitation appears to be illogical and is discordant with the need for national policing agencies to co ordinate the investigation into, and control of, extra jurisdictional offending. Agencies such as CEOP, or the newly formed National Crime Agency, are severely hampered in their investigations by this residence led test.
c. It is often not clear where an offender intends to reside. He may be in transit between jurisdictions, or simply making a short visit before moving on. Whilst it is possible that a local police chief will be alerted to the offenders presence in his area, it must be more more advantageous that a national agency with evidence of his behaviour and whereabouts is able to make the application to a court before he leaves the country.
d. A further difficulty faced by the applicant is the need to make the application to a magistrates’ court. This means time is wasted whilst a summons is issued and served and the matter listed at court for determination. As there is no interim order available, there is nothing to stop a defendant leaving the country prior to his appearance in court.
a. The FTO applies only to children. It seems an unnecessary limitation. Should not the United Kingdom’s authorities be protecting all extra jurisdictional citizens from British sexual offenders?
17. It is currently proposed that schedule 5 of the Anti Social Crime and Policing Act 2014 will amend parts 2 and 3 of the SOA 2003 to include two new orders: Sexual Harm Prevention Order (SHPO) and a Sexual Risk Order (SRO). These orders are designed to effectively disrupt and prevent the commission of sexual offences and are intended to replace the current regime of FTOs and other related orders. Schedule 5 received Royal Assent in March 2014 with all party support. It is envisaged that the provisions will be in force in the Autumn of 2014.
18. SHPO: A prevention order will be imposed if ‘ the court is satisfied that it is necessary to make a SHPO for the purpose of (i) protecting the public, or any particular member of the public from sexual harm from the defendant or (ii) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom’(s.103A(2)(b)). The need for a defendant to have a qualifying conviction has been retained, but the requirement for the harm to be ‘serious’ has been removed, as has the limitation for protecting only the young or vulnerable residing within the UK.
19. The order, unlike a FTO, is available upon conviction. However, in addition, the proposed s.103A(4) includes not only the chief officer of police as a potential post conviction applicant, but also the director general of the NCA.
20. The SHPO now extends to protect the vulnerable adults of extra jurisdictional territories. “Vulnerable adult’ is defined as a ‘person aged 18 or over whose ability to protect himself from physical or psychological harm is significantly impaired through physical or mental disability or illness, throughold age or otherwise’. ‘Child’ is now defined as any person under 18. (s.103B(1))
21. The SHPO includes a specific prohibition on foreign travel (s.103D) with restriction of a fixed period of no more than 5 years, which may be extended (s.103E). The prohibition on foreign travel incorporates the same features as s.117(2), and retains the requirement for surrender of passport if all travel outside the United Kingdom is prohibited.
22. SRO: This Order requires only a single qualifying act and does not require a qualifying conviction. “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”(s.122A(2)). This is an order applied for in the same way (by either chief officer of police of the director general of the NCA) on complaint as a non conviction SHPO and may last no less than 2 years, but may specify different periods for different prohibitions. Prohibitions may only be imposed for the purpose of protecting “(a) 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 of vulnerable adults, from harm from the defendant outside the United Kingdom.” (s.122A(9)). The ‘act of a sexual nature’ has not been defined within the proposed legislation, but is envisaged to include pre-cursive grooming activity and other sexually motivated conduct.
23. S.122C governs the prohibitions on foreign travel. This section mirrors the content of s.103D. The same sanctions are also available in the event of a breach.
24. An interim order is available, and can be imposed whilst the defendant is on bail awaiting determination of the application.
25. Under the current regime the fact is that FTOs are rarely employed in the fight against extra jurisdictional sexual abuse by British nationals. The conditions that need to be met and the methods of application are simply too onerous for their effective deployment. At present, FTOs are enabling high risk British subjects to travel to countries where there is no functioning system of law enforcement and children are available for sexual exploitation. Under the new regime, prohibitions on foreign travel are more widely available and more simply applied for, making them a vastly superior tool in the campaign to impede sexual offending abroad.
Sexual Offences Act 2003
Anti Social Crime and Policing Act 2014
Key subordinate legislation
Key European Union Legislation
Archbold Chapter 20: Sexual Offences (Sweet and Maxwell) ed 2014
The Sexual Offences Referencer, Eleanor Laws Qc and HHJ Patricia Lees (Oxford University Press) Appendix 5, 1st ed 2008
Rook and Ward on Sexual Offences. Law and Practice, HHJ Peter Rook QC and Robert Ward CBE (Sweet and Maxwell) 4th ed 2014
Civil Prevention Orders, Sexual Offences Act 2003 www.ecpat.org.uk/default/files/the_davies_review.pdf