There are noticeable difference between the way the USA and the UK try to protect the public from sex offenders who are living in the community. Both countries have a sex offender register but thereafter there is a departure in the way the register is used and how each try to contain the offender in the interests of public protection.
In the USA the register is publicly available to anyone who wants to consult it including availability on the internet. This ‘universal’ approach of ‘community notification’ is in contrast to the more ‘selective’ approach of the UK where only certain people are allowed to know information about a person’s sexual convictions and their registration status.
The USA has blanket residency restrictions with geographic zones that sex offenders are not allowed to live in. The UK has targeted restrictions on a person’s lifestyle and where they might want to live using individualised preventive civil orders. Another example of the ‘universal’ and ‘selective’ approaches taken by the respective countries.
But is the UK slowly moving towards a wider interpretation of the conditions the state can impose on a sex offender in the interests of public protection?
A recent case heard in the UK Court of Appeal [Richards, R (on the application of) v Teesside Magistrates' Court & Another  EWCA Civ 7] involved a registered sex offender being ‘contained’ by a Sexual Offences Prevention Order (SOPO) – one of the preventive civil orders introduced by the Sexual Offences Act 2003. These Orders are applied for by the police on certain qualifying individuals and they allow the courts to impose various negative restrictions on a person’s behaviour.
The appeal in this case was against the court’s decision to require the sex offender to wear an electronic tag to monitor his movements. He argued that (a) there was nothing in the law on SOPO’s that said anything about electronic tags being worn unlike all other legal references to tags which were in the statute book, and (b) the requirement to wear a tag was a ‘positive’ when all other restrictions by SOPO’s were ‘negative’ as the law suggested they should be.
The case was lost and the presiding judges ruled that:
The only restrictions to what may be placed in a SOPO are … that it must be ‘necessary’ to impose the prohibition in order to protect the public or particular members of the public from serious sexual harm from the defendant …[and] Parliament did not restrict or limit the prohibitions which may be included in a SOPO. Given the myriad ways in which such harm may be caused, the absence of a list of permitted prohibitions is understandable (para.29)
But SOPOs themselves are about to disappear. The Anti-Social Behaviour, Crime and Policing Act 2014 Part 9 replaces them with Sexual Risk Orders and Sexual Harm Prevention Orders. Exactly when these new Orders will become active is as yet still unknown. What we do know is that they are going to be even more widely drawn than the existing SOPO (see e.g. ‘New Home Office Rules give police sweeping powers to curb sex offenders’ The Independent 9 October 2013). If we thought the SOPO was vague wait till we see what comes next.
Terry Thomas is Emeritus Professor of Criminal Justice Studies, Leeds Beckett University UK – for a longer account of the changes in the UK law about to take place see Thomas T and Thompson D (2014) New Civil Orders to contain Sexually Harmful Behaviour in the Community British Journal of Community Justice 12 (3): 19-33.