This is not simply a problem for foreign countries. Offending patterns are learnt in low-risk environments abroad and then practised within the UK. The NSPCC reports that 17,186 sexual crimes against children under 16 were recorded in England and Wales in 2011/12. The Telford and Oxford trials demonstrated a pattern of child trafficking within the UK.

Extra-territorial sexual crimes against children by UK nationals are presently the responsibility of the offender’s local force, albeit with specialist input from the Child Exploitation and Online Protection Centre (CEOP). Most local forces are simply not equipped to conduct these investigations, nor will they represent a policing priority for the elected PCC. The ACPO commissioned review recommends a dedicated national investigation unit for such extra-territorial offending. Encouragingly, child protection will represent one of the four commands under the pending National Crime Agency.

There is no permanent UK law enforcement presence “on the ground” abroad to promote liaison with local forces as to the investigation and prosecution of British offenders. For good reason, not least the interests of the child, local jurisdiction prosecutions are favoured wherever possible for this category of offending. There is simply no funding available under the current system of allocated budgets from the Home Office to allow for this kind of international liaison. The review contends that dedicated extra-territorial police resources may be properly classed as international development and resourced accordingly by DFID. The existing, discretionary, year-on-year FCO funding, and third-party sponsorship, do not promote the necessary longer-term projects that the problem demands.

The existing statutory regime
The review concluded that the existing legislative regime actively obstructs international child protection, and may mean that the United Kingdom’s basic human rights obligations are not being met. Local forces (i.e. local to the hypothetical UK residence of the likely offender) have the obligation to apply for prevention orders. Other than on conviction, (and then only in relation to a SOPO), the only applicant is the chief officer of the local force. The offender often travels ahead of the evidence between forces.

At any one time there are typically around 30,000 persons subject to the notification requirements that arise on a mandatory basis on conviction for qualifying sexual offences, including non-contact “downloading” offences in relation to indecent pictures of children. The statutory notification requirements are onerous and were further strengthened in 2012. They include duties to notify the police as to any foreign travel and provide personal data including addresses and banking details. Given this number of qualifying, convicted, offenders, and the practical impossibility of monitoring their conduct in many destination countries where commercial child sexual exploitation is endemic, it is remarkable that between 2005 and April 2012 only 50 foreign travel orders had been obtained nationally i.e. 5 per year. In 2007, a year in which 70 British nationals actively sought Consular assistance having been arrested for child sexual offences (many arrested do not seek such assistance), none were obtained.

This addresses only known and convicted offenders. Many others represent objectively a very high risk of contact offending but have not been convicted. Indeed, many of these are demonstrably a higher risk of such contact offending than some convicted offenders. The reality - namely that there are many reasons why a prior conviction may not exist, none of which should determine risk of contact offending - appears to have been lost.

SOPOs (limited to preventing offending in the UK) and FTOs have the prerequisite that there has been a qualifying conviction before they may be imposed. Readily identifiable, but unconvicted, sexual offenders who travel outside the jurisdiction, and who will often have almost unregulated access to children, cannot be prevented from travelling. Even in the UK, with special measures (including the use of intermediaries) available for vulnerable witnesses, some offenders avoid prosecution and conviction: for example, admissions may be ruled inadmissible, and in any event it is not always judged to be in the best interests of a child victim to proceed to a criminal trial. Itinerant offenders often have a clear record of offending in different jurisdictions but escape prosecution in each.

The artificial obstructions to effective child protection do not end there. Unlike a SOPO, an FTO is not available on conviction. The applicant local chief officer of police must also prove that since the “appropriate date”, usually the date of conviction, the offender “has acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made”. The corollary is that however compelling the evidence of risk of future contact offences based on an offender’s antecedent record, evidence must be produced of conduct by the defendant post-dating conviction before an order can be considered. What, for example, of the offender remanded in custody?

There are other procedural challenges to any chief officer. Given the penal sanction for breach (up to five years’ imprisonment) the underlying conduct, and question of necessity, must each be proved to a criminal standard, albeit that admissibility of evidence is determined by the principles of civil rather than criminal procedure. As a civil application the subject of application must be given due notice. There is no power to impose an interim FTO, meaning that offenders are free to leave the UK prior to the final hearing, and have done so.

The only arguable alternative is a RoSHO. This does not require either a previous conviction or action since the appropriate date. Even if (which is unlikely) it were appropriate to use a RoSHO to achieve the purpose of the more specific FTO, they have separate pre-requisites that render them unfit for this purpose in most cases. The basic flaw is that a likely offender must be proved, to the criminal standard, to have committed at least two qualifying sexual contact offences with children before a RoSHO can be imposed. This prerequisite precludes an order even when an unconvicted offender has admitted raping a child if this offending was on a single occasion. Unsurprisingly RoSHOs are rarely used in practice, still less (if ever) to address foreign travel.

Suggested reform
The ACPO commissioned review, published on the 14th May 2013, recommended that immediate legislative reform is required in the interests of protecting children internationally from serious sexual harm. The suggested reforms are contended to comply both with competing human rights considerations, and the State’s positive obligations to children at risk of serious sexual harm from identifiable British nationals.

Aside from inviting review of the resourcing of extra-territorial policing, the authors (including experts from specialist NGOs, CEOP and policing) recommended that the existing orders be replaced with a single “Child Sexual Offences Prevention Order” in the following terms:

“On the application of a qualifying person (chief officer of police or other qualified person (CEOP/SOCA/NCA/CPS, etc), or on conviction for a qualifying offence, a court may make a child sexual offences prevention order if it is satisfied that it is necessary to make such an order for the purpose of protecting a person of under 18 years’ from sexual harm from the defendant/respondent.”

The panel also recommended the imposition of interim orders to prevent offenders from travelling outside of the jurisdiction prior to any resolution of the application. Existing procedural rights (including the criminal standard of proof for the test of risk; a judicial rather than executive or police decision-maker; proportionality/necessity; and rights of appeal to a Crown Court judge) would be preserved.

There would also be obvious benefits within the United Kingdom. Specific conduct associated with systematic grooming and trafficking could be reflected in a prevention order without the need for a qualifying conviction. The Telford and Oxford  cases demonstrate the need for such a power of intervention.

What next?
ACPO is considering the review. To the credit of Peter Davies (head of CEOP, and the commissioning party for ACPO) the review has been made public to promote wider consultation, including across Parliament. How best to address the industry of international child exploitation is, and should remain, a matter of cross-party co-operation. There is surely a duty to control such toxic human exports.

Hugh Davies QC is the lead author of “Civil Prevention Orders: ACPO commissioned review of the existing statutory scheme and recommendations for reform”. Both authors sit on the ACPO child protection and abuse investigation working group.

Hugh Davies OBE QC, 3 Raymond Buildings and Madeleine Wolfe, 1 Inner Temple Lane