Part 3: Chapter 1: Prevention Orders
25.The legislative provision seeks to strengthen the effectiveness of the Sexual Offences Prevention Order (SOPO) and the Violent Offences Prevention Order (VOPO) in certain areas identified by key operational partners.
26.The provisions applicable to both are relatively minor in nature and comprise adjustments to existing legislation. This is Schedule 5 to the Sexual Offences Act 2003 (“the 2003 Act”) for SOPO and section 57 of the Justice Act (Northern Ireland) 2015 (“the 2015 Act”) for VOPO.
27.The amendment to the 2003 Act brings the offence under Article 68 of the Children (Northern Ireland) Order 1995 (abduction of children in care, etc.) into the scope of existing SOPO provision, by including the offence in the list of specified offences. This would mean that a SOPO could be applied for in respect of persons who present a risk of serious sexual harm where they have committed the offence now being specified.
28.The amendment to the 2015 Act removes, in connection with a VOPO application, the statutory six month time limit (under Article 78(1) of the Magistrates’ Courts (Northern Ireland) Order 1981) within which a civil complaint must normally be made to the court. The amendment will ensure that behaviour of an offender evidenced more than six months previous to the time when an application is being made for a VOPO could be considered by the court.
Chapter 2: Causing or Risking Serious Harm
29.This Chapter clarifies the law on the defence of consent to harm for the purpose of sexual gratification and creates a new offence of non-fatal strangulation or asphyxiation, reflecting similar changes made to the law of England and Wales via the Domestic Abuse Act 2021.
30.Section 27 makes the existing common law position clear that a person cannot rely on the injured party’s consent as a defence where acts carried out for the purpose of obtaining sexual gratification, regardless of whose sexual gratification, result in serious harm.
31.The threshold of ‘serious harm’ aims to balance individuals’ private law rights with the public interest of protecting the health and safety of members of society, and reflects the general proposition established in the case of R. v. Brown [1993] 2 W.L.R.556, that a person may not consent to the infliction of serious harm on themself and, by extension, is unable to consent to their own death.
32.The section also acknowledges the exception in relation to cases involving the transmission of sexually transmitted infections, in so far as the law has been established by the cases of R v Dica [2004] 3 All ER 539 and R v Konzani [2005] EWCA Crim 706.
33.Section 28 makes provision for a new offence of strangulation or asphyxiation. It provides for trial in either the magistrates’ courts or in the Crown Court and sets the maximum penalties for each mode of trial.
34.Aligning with section 27, section 28 also makes provision for consent to be available as a defence provided serious harm does not occur.
