6.0 Reforms to system of civil orders
The Abusive Behaviour and Sexual Harm (Scotland) Act 2016 which was passed by the Scottish Parliament on 22nd March 2016 and received Royal Assent on 28th April 2016 provides the opportunity for the Scottish Government to simplify and rationalise the existing system of civil orders available to protect communities from those who may commit sex offences, by introducing:
- Sexual Harm Prevention Orders - a post-conviction order which replaces the Sexual Offences Prevention Order ( SOPO) and Foreign Travel Order ( FTO) under the Sexual Offences Act 2003 and can apply to those convicted of a relevant sexual offence; and
- Sexual Risk Orders - a non-conviction order which replaces the Risk of Sexual Harm Order ( RSHO) under the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, and can apply to any individual who poses a risk of sexual harm.
These changes address the concerns of professionals, including the police, that the use and effectiveness of the existing civil orders imposed on sex offenders and those who pose a risk could be improved to better protect the public from sexual harm.
The new orders have a lower risk requirement than the previous orders, allowing both orders to be used to manage risk against adults and vulnerable adults abroad, as well as children. In addition, their remit is wider, enabling, for example, foreign travel restrictions to be applied under either order. Again, the aim of streamlining the orders was to provide the police and practitioners with greater clarity and flexibility.
The test of "serious sexual harm" in existing provision is also being replaced. Accordingly a court will be able to grant a new order if it is satisfied that it is necessary to protect a person from "sexual harm."
While the reforms are beneficial in their own terms, it should be noted that the UK Government introduced similar measures in the Anti-social Behaviour, Crime and Policing Act 2014. There has been a parallel regime for sex offenders north and south of the border for many years until the recent UK Government reforms and one of the benefits of reforms being progressed in Scotland is to re-introduce this parallel regime. For example, those individuals who may be subject to the orders may well seek to take advantage of a less robust regime operating in Scotland."