Enable those lacking capacity to stand trial to be registered as sex offenders

I want people who lack capacity to be taken to court to be able to be added to the sex offenders register, where there is clear evidence a sexual offence has been committed.

Some people are getting away with disgusting crimes, because they lack the capacity to be questioned by the police or stand trial. If they were able to be registered as sex offenders, where there is clear evidence a sexual offence has been committed, appropriate safeguarding could be put in place.

Individuals who are prosecuted for sexual offences can be registered as sex offenders even if at trial they are found under a disability, within the meaning of the Sexual Offences Act 2003, and to have done the act of which they are accused, or they are found not guilty by reason of insanity.

Where an individual is to be questioned by the police, the police must decide whether the person is fit for interview. To do this, the police engage a medical professional, Doctor or Psychiatrist, who will decide if the individual is fit to be interviewed and face questioning, or whether the individual lacks capacity to be interviewed. If they have capacity, the interview can be carried out and the individual may be charged accordingly. If they lack capacity, the police will not interview them, but they can still be prosecuted and the court will assess the evidence of their disability as well as the evidence of the offence.

We have one of the most robust systems in the world for managing registered sex offenders and those who pose a risk of sexual harm. Qualifying offenders are required to notify their personal details to the police. This system is often referred to as the ‘sex offenders’ register’ and requires offenders to provide their local police station with a record of (amongst other things) their: name, address, date of birth and national insurance number. This must be done annually and whenever their details change.

The notification requirements are an automatic consequence of a conviction or caution (for a Schedule 3 offence under the Sexual Offences Act 2003 “the 2003 Act”), but the length of time an offender will be subject to the requirements will vary dependent upon the sentence they are given. Anyone found not guilty of certain sexual offences by reason of insanity or anyone, under a disability, that is found to have done the act charged against them is required to comply with the statutory requirement to notify, if the offence is listed in schedule 3 to the 2003 Act. Breach of the notification requirements is a criminal offence punishable by a maximum of five years’ imprisonment.

In addition, the court can make a ‘sexual harm prevention order’ (SHPO) against a person who has been found to be under a disability and to have done the act of which they are accused, or found not guilty by reason of insanity, under the Sexual Offences Act 2003. To make an order the court must be satisfied that the order is necessary for the purpose of protecting the public, or any particular members of the public, from sexual harm from the defendant, or satisfied that the order is necessary for the purpose of protecting children or vulnerable adults generally. Alternatively the court must be satisfied that the order is necessary for the purposes of protecting any particular children or vulnerable adults from sexual harm from the defendant outside the United Kingdom. An order can prohibit the defendant from doing anything that the court describes in the order, either for a fixed period of at least 5 years or indefinitely until the court is asked to review the case.

In addition, and even if a person has not been prosecuted at all, the police can ask a magistrates’ court to make a ‘sexual risk order’ (SRO) under the Sexual Offences Act 2003, where that person has ‘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’. A sexual risk order has the same effect as a sexual harm prevention order. It can prohibit the defendant from doing anything that the court describes in the order, either for a fixed period of at least 2 years or indefinitely until the court is asked to review the case.

Both orders can place a range of restrictions on individuals depending on the nature of the case, such as limiting their internet use or preventing travel abroad. For both, a breach is a criminal offence punishable by a maximum of 5 years’ imprisonment.

We are continuing to strengthen the ways in which registered sex offenders and those who pose a risk are managed through new measures being introduced by the Police, Crime, Sentencing and Courts Bill, including to enable the courts to impose positive requirements through SHPOs or SROs (such as a requirement to participate in a treatment programme).

Ministry of Justice