The sexual risk and sexual harm prevention orders: Judgement without trial.

A number of legislations have been introduced recently by various governments in the United Kingdom including the Sexual Offences Prevention Order and Foreign Travel Order to tackle sex crimes. However, these legislations seem not to be effective in dealing with these crimes as the level of sexual crimes in the country is believed to be on the increase rather than on the decrease. Now the government is proposing two sets of orders to fight the sexual crimes.

One of these sexual offences order is called The Sexual Risk Order. This sexual risk order replaces the “risk of sexual harm order”. It can be imposed on both convicted sex offenders and persons who have never been convicted of any sex offences in the past but are perceived to pose a significant risk to the public. Among the terms of this order include the restriction of the ability of defendants to use the internet or travel abroad once the sexual risk order is imposed on them.

The minimum period in which the sexual risk order can be imposed on the defendant is two years but there is no upper limit for the imposition of the order which means that the defendant can have the order hanging around his neck for life. While the imposition of this type of measure on defendants who have already been convicted of sex crimes in the past can be justified, it is difficult to justify the imposition of this order on the defendants who have never committed any sexual crimes in the past and have not committed any sexual crimes during the time the sexual risk order is being imposed on them.

The second type of the proposed sexual offences order is referred to as The Sexual Harm Prevention Order. This sexual harm prevention order is designed to replace the current sexual offences prevention orders and foreign travel orders. The minimum period in which this order can be imposed on the defendant is 5 years. Like the sexual risk order, there is no upper limit in which the sexual harm order can last and the defendant runs the risk of having the order for life. Unlike the sexual risk order, however, the sexual harm prevention order can be imposed only on individuals who have been convicted of sex crimes in the past. The justification for this order therefore is “once a sex offender always a sex offender.”

In order to calm the critics, there is a provision in these sexual crime orders that they can be imposed on the defendants only by the magistrate courts. The police can only make an application to the magistrate court for it to impose either a sexual risk order or sexual harm prevention order on a suspect whom they consider to pose a significant risk of committing sexual crimes. The magistrate court will assess this application and determine whether it should be granted to the police. The rationale for this is to ensure that the imposition of the order is done through the normal judicial process and that the police cannot act as both the prosecutors and judges by imposing the orders on the defendants. However, research indicates that magistrate courts are more likely than not to grant police applications, which means that most people whose names shall be submitted to the court by the police for sexual crime orders are likely to get them.

Another safeguard included in the sexual crime orders is the provision for the variation of the sexual crimes orders. Both the defendant and the police can apply to the court for the term of the sexual risk order or sexual harm prevention order to be varied. While both the police and well-to-do defendants may have the resources to apply for the variation of a particular sexual crime order to suit them, poor defendants may not have such resources to apply for the sexual crime order against them to be varied. In the absence of such resources to apply for an order against them to be varied, these defendants will accept their fate with the adverse consequences that follow criminal convictions including labelling and stigmatization.

It is quite clear that the government intends to use these proposed sexual crime orders to prevent sexual predators from committing further sex crimes and protect the public from such violence. When implemented, however, the orders may lead to unintended consequences. They will result in a situation whereby a person will be convicted of a crime without any evidence of criminal involvement or trial but merely on the basis of suspicion of dangerousness. This will undermine the fundamental principle of the rule of law which states that a person can only be convicted of a crime after he or she has gone through the due process of law.