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Violent Offender Orders – their underuse and the potential consequences of their underuse

News | Thu 18th Aug, 2022

Max Melsa was instructed to represent Bedfordshire Police as an Interested Party in the Inquest of Harper Denton and comments upon the role of Violent Offender Orders

If you have never come across Violent Offender Orders (‘VOOs’), then you can be forgiven. However, they are a potentially crucial tool that can be used by Public Protection Units to continue to monitor seriously violent convicted persons beyond their licence period, including through notification requirements.

The recent Inquest of Harper Denton considered the use of VOOs and the extent of their use by different Police constabularies. A summary of the Inquest conclusions can be found below:

What was apparent from the Inquest proceedings is that constabularies can most likely count on their hands the number of persons in their jurisdictions who are subject to VOOs. This may not be surprising given the limited pool of persons they could apply to, but for those that they may apply to, it is imperative that they are considered.

The Law

VOOs were introduced by section 98 of the Criminal Justice Act 2008 (‘CJA 2008’).

VOOs can only be applied for by a Chief Constable and their Agents (section 100). The application is made to the Magistrates’ Court.

A potential subject of a VOO must be (as per section 100):

  1. a qualifying offender (section 99, see below); and
  2. that the potential subject has, since the appropriate date, acted in such a way as to give reasonable cause to believe that it is necessary for a VOO to be made in respect of the person.

Section 99 sets out that to be a qualifying offender, the potential subject must have been convicted of a specified offence and either has received:

  1. a custodial sentence of at least 12 months was imposed for the offence; or
  2. a hospital order (with or without a restriction order).

The appropriate date is that being when the potential subject was convicted and includes those convicted before the introduction of VOOs in August 2009 (section 100(5)).

Specified offences are set out at section 98 and repeated below:

  1. manslaughter;
  2. an offence under section 4 of the Offences against the Person Act 1861 (soliciting murder);
  3. an offence under section 18 of that Act (wounding with intent to cause grievous bodily harm);
  4. an offence under section 20 of that Act (malicious wounding);
  5. an offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation);
  6. attempting to commit murder or conspiracy to commit murder; or
  7. a relevant service offence.

It is noted that, for an application for a VOO to be successful, the potential subject must have acted in a way that, following conviction, causes the order to be required. This means that it may be behaviour observed from the time the potential person is in custody, or from behaviour whilst on licence in the community. It therefore does not take into account the conviction itself.

The test as to whether the order should be made is that of proportionality, purpose, and necessity, in compliance with the potential subject’s Article 8 Rights.

The types of restriction that can be imposed under such an order are set out in section 102 and, significantly, an individual subject to a VOO will also be subject to notification requirements including the provision of names, addresses and the power to compare this information with that held by other state agencies such as social security, child support and the DVLA (sections 114-115).

Application to the Inquest in terms of VOOs

To give a brief background (with more details provided in the BBC article above), Harper was smothered by her father (‘KE’) after inflicting multiple injuries on her in June 2018. KE had a previous conviction for GBH against a two-year-old child.

Among the Coroner’s findings were that the Metropolitan Police (‘MPS’) failed to consider applying for a VOO to ensure KE remained subject to notification requirements following the end of his licence period imposed for his conviction of GBH, in order to safeguard future potential victims.

KE was an example of someone who would have fell within the qualifying provisions for making a VOO, with the MPS being informed of a number of serious domestic abuse incidents whilst KE was on licence. These incidents would have most likely been considered as evidence of acting in such a way that the necessity for a VOO was made out under section 100 CJA 2008.

It was found by the Coroner that if the MPS had applied and obtained a VOO it would have lasted until at least January 2017. Therefore, the fact that by then KE was living with Harper’s mother and her son would have been flagged under KE’s notification requirements, as KE would have had to declare the start of his relationship with Harper’s mother.

Two main considerations when considering an application for a VOO

  1. Gathering evidence in support of a VOO

Offenders that can be subject to VOOs will have significant involvement with multiple agencies, including Probation and through Multi-Agency Public Protection Arrangements (MAPPA). Police Protection Units will be involved in many meetings considering the management of offenders who may be eligible for such an order, and should keep in mind that this Order is a tool available to them beyond the offer’s licence period.

2. Timing of applying for a VOO

VOOs can be applied for prior to a licence period for a potential subject ending but can only take effect once a licence period has ended. Therefore, the legislation requires Chief Constables and their Agents to be highly proactive and forward thinking in considering applications. Applications for civil orders in the Magistrates’ Court can take time to be listed. Once listed however, interim orders can be made under section 104.

There is no provision in the CJA 2008 for the applications to be heard within specified time period once issued. This is in contrast to other tools at the disposal of the Police, such as Closure Orders under the Anti-social Behaviour, Crime and Policing Act 2014, where applications must be heard within 48 hours of notice being served (section 80) and the hearing itself cannot be adjourned for more than 14 days (section 81).

Therefore, Chief Constables and their Agents should consider applying for VOOs a considerable time period before the potential subject’s licence period ends, otherwise this may leave a gap between the end of the licence period and any application for a VOO being heard.

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