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Sexual Offences Bill [HL]


Sexual Offences Bill [HL]
Part 2 — Notification and orders

    51

 

Sexual offences prevention orders

 103   Sexual offences prevention orders: applications and grounds

     (1)    A court may make an order under this section (a “sexual offences prevention

order”) in respect of a person (“the defendant”) where any of subsections (2) to

(4) applies to the defendant and—

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           (a)           where subsection (4) applies, it is satisfied that the defendant’s

behaviour since the appropriate date makes it necessary to make such

an order, for the purpose of protecting the public or any particular

members of the public from serious sexual harm from the defendant;

           (b)           in any other case, it is satisfied that it is necessary to make such an

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order, for the purpose of protecting the public or any particular

members of the public from serious sexual harm from the defendant.

     (2)    This subsection applies to the defendant where the court deals with him in

respect of a conviction for an offence listed in Schedule 2 or 3.

     (3)    This subsection applies to the defendant where the court deals with him in

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respect of a finding—

           (a)           that he is not guilty of an offence listed in Schedule 2 or 3 by reason of

insanity, or

           (b)           that he is under a disability and has done the act charged against him

in respect of such an offence.

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     (4)    This subsection applies to the defendant where—

           (a)           an application under subsection (5) has been made to the court in

respect of him, and

           (b)           on the application, it is proved that he is a qualifying offender.

     (5)    A chief officer of police may by complaint to the magistrates’ court apply for a

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sexual offences prevention order in respect of a person who he believes is in, or

is intending to come to, his police area if it appears to the chief officer that—

           (a)           the person is a qualifying offender, and

           (b)           the person has since the appropriate date acted in such a way as to give

reasonable cause to believe that it is necessary for such an order to be

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made.

     (6)    An application under subsection (5) may be made to any magistrates’ court

whose commission area includes—

           (a)           any part of the applicant’s police area, or

           (b)           any place where it is alleged that the person acted in a way mentioned

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in subsection (5)(b).

 104   Section 103: supplemental

     (1)    Subsections (2) to (5) apply for the purposes of section 103.

     (2)    “Protecting the public or any particular members of the public from serious

sexual harm from the defendant” means protecting the public in the United

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Kingdom or any particular members of that public from serious physical or

psychological harm, caused by the defendant committing one or more offences

listed in Schedule 2.

 

 

Sexual Offences Bill [HL]
Part 2 — Notification and orders

    52

 

     (3)    Acts, behaviour, convictions and findings include those occurring before the

commencement of this Part.

     (4)    “Qualifying offender” means a person who, whether before or after the

commencement of this Part—

           (a)           has been convicted of an offence listed in Schedule 2 or 3,

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           (b)           has been found not guilty of such an offence by reason of insanity,

           (c)           has been found to be under a disability and to have done the act

charged against him in respect of such an offence,

           (d)           in England and Wales or Northern Ireland, has been cautioned in

respect of such an offence, or

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           (e)           has been punished under the law in force in a country outside the

United Kingdom for an act which—

                  (i)                 constituted an offence under that law, and

                  (ii)                would have constituted an offence listed in Schedule 2 or 3 if it

had been done in any part of the United Kingdom.

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     (5)    “Appropriate date”, in relation to a qualifying offender, means the date or (as

the case may be) the first date on which he was convicted, found, cautioned or

punished as mentioned in subsection (4).

     (6)    An act punishable under the law in force in a country outside the United

Kingdom constitutes an offence under that law for the purposes of subsection

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(4), however it is described in that law.

     (7)    Subject to subsection (8), on an application under section 103(5) the condition

in subsection (4)(e)(ii) (where relevant) is taken as having been met unless, not

later than rules of court may provide, the defendant serves on the applicant a

notice—

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           (a)           stating that, on the facts as alleged with respect to the act concerned, the

condition is not in his opinion met,

           (b)           showing his grounds for that opinion, and

           (c)           requiring the applicant to prove that the condition is met.

     (8)    The court, if it thinks fit, may permit the defendant to require the applicant to

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prove that the condition is met without service of a notice under subsection (7).

 105   Sexual offences prevention orders: effect

     (1)    A sexual offences prevention order—

           (a)           prohibits the defendant from doing anything described in the order,

and

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           (b)           has effect for a fixed period (not less than 5 years) specified in the order

or until further order.

     (2)    The only prohibitions that may be included in the order are those necessary for

the purpose of protecting the public or any particular members of the public

from serious sexual harm from the defendant.

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     (3)    Where—

           (a)           an order is made in respect of a defendant who was a relevant offender

immediately before the making of the order, and

           (b)           the defendant would (apart from this subsection) cease to be subject to

the notification requirements of this Part while the order (as renewed

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from time to time) has effect,

 

 

Sexual Offences Bill [HL]
Part 2 — Notification and orders

    53

 

            the defendant remains subject to the notification requirements.

     (4)    Where an order is made in respect of a defendant who was not a relevant

offender immediately before the making of the order—

           (a)           the order causes the defendant to become subject to the notification

requirements of this Part from the making of the order until the order

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(as renewed from time to time) ceases to have effect, and

           (b)           this Part applies to the defendant, subject to the modification set out in

subsection (5).

     (5)    The “relevant date” is the date of service of the order.

     (6)    Where a court makes a sexual offences prevention order in relation to a person

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already subject to such an order (whether made by that court or another), the

earlier order ceases to have effect.

     (7)    Section 104(2) applies for the purposes of this section and section 106.

 106   Sexual offences prevention orders: variations, renewals and discharges

     (1)    A person within subsection (2) may apply to the appropriate court for an order

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varying, renewing or discharging a sexual offences prevention order.

     (2)    The persons are—

           (a)           the defendant;

           (b)           the chief officer of police for the area in which the defendant resides;

           (c)           a chief officer of police who believes that the defendant is in, or is

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intending to come to, his police area;

           (d)           where the order was made on an application under section 103(5), the

chief officer of police who made the application.

     (3)    An application under subsection (1) may be made—

           (a)           where the appropriate court is the Crown Court, in accordance with

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Rules of Court;

           (b)           in any other case, by complaint.

     (4)    Subject to subsections (5) and (6), on the application the court, after hearing the

person making the application and (if they wish to be heard) the other persons

mentioned in subsection (2), may make any order, varying, renewing or

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discharging the sexual offences prevention order, that the court considers

appropriate.

     (5)    An order may be renewed, or varied so as to impose additional prohibitions on

the defendant, only if it is necessary to do so for the purpose of protecting the

public or any particular members of the public from serious sexual harm from

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the defendant.

     (6)    The court must not discharge an order before the end of 5 years beginning with

the date on which the order was made, without the consent of the defendant

and—

           (a)           where the order was made on an application under section 103(5), the

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chief officer of police who made the application;

           (b)           in any other case, the chief officer of police for the area in which the

defendant resides.

     (7)    In this section “the appropriate court” means—

 

 

Sexual Offences Bill [HL]
Part 2 — Notification and orders

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           (a)           where the Crown Court or the Court of Appeal made the sexual

offences prevention order, the Crown Court;

           (b)           where a magistrates’ court made the order, that court, a magistrates’

court for the area in which the defendant resides or, where the

application is made by a chief officer of police, any magistrates’ court

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whose commission area includes any part of the chief officer’s police

area;

           (c)           where a youth court made the order, that court, a youth court for the

area in which the defendant resides or, where the application is made

by a chief officer of police, any youth court whose commission area

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includes any part of the chief officer’s police area.

     (8)    This section applies to orders under—

           (a)           section 5A of the Sex Offenders Act 1997 (c. 51) (restraining orders),

           (b)           section 2 of the Crime and Disorder Act 1998 (c. 37) (sex offender orders

made in England and Wales), and

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           (c)           Article 6 of the Criminal Justice (Northern Ireland) Order 1998 (S.I.

1998/2839 (N.I. 20)) (sex offender orders made in Northern Ireland),

            as it applies to sexual offences prevention orders.

 107   Interim sexual offences prevention orders

     (1)    This section applies where an application under section 103(5) (“the main

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application”) has not been determined.

     (2)    An application for an order under this section (“an interim sexual offences

prevention order”)—

           (a)           may be made by the complaint by which the main application is made,

or

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           (b)           if the main application has been made, may be made by the person who

has made that application, by complaint to the court to which that

application has been made.

     (3)    The court may, if it considers it just to do so, make an interim sexual offences

prevention order, prohibiting the defendant from doing anything described in

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the order.

     (4)    Such an order—

           (a)           has effect only for a fixed period, specified in the order;

           (b)           ceases to have effect, if it has not already done so, on the determination

of the main application.

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     (5)    While such an order has effect—

           (a)           the defendant is subject to the notification requirements of this Part;

           (b)           this Part applies to the defendant, subject to the modification set out in

subsection (6).

     (6)    The “relevant date” means the date of service of the order.

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     (7)    The applicant or the defendant may by complaint apply to the court that made

the interim sexual offences prevention order for the order to be varied,

renewed or discharged.

     (8)    Subsection (7) applies to orders under—

 

 

Sexual Offences Bill [HL]
Part 2 — Notification and orders

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           (a)           section 2A of the Crime and Disorder Act 1998 (c. 37) (interim orders

made in England and Wales), and

           (b)           Article 6A of the Criminal Justice (Northern Ireland) Order 1998 (S.I.

1998/2839 (N.I. 20)) (interim orders made in Northern Ireland),

            as it applies to interim sexual offences prevention orders.

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 108   SOPOs and interim SOPOs: appeals

     (1)    A defendant may appeal against the making of a sexual offences prevention

order—

           (a)           where section 103(2) applied to him, as if the order were a sentence

passed on him for the offence;

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           (b)           where section 103(3) (but not section 103(2)) applied to him, as if he had

been convicted of the offence and the order were a sentence passed on

him for that offence;

           (c)           where the order was made on an application under section 103(5), to

the Crown Court.

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     (2)    A defendant may appeal to the Crown Court against the making of an interim

sexual offences prevention order.

     (3)    A defendant may appeal against the making of an order under section 106, or

the refusal to make such an order—

           (a)           where the application for such an order was made to the Crown Court,

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to the Court of Appeal;

           (b)           in any other case, to the Crown Court.

     (4)    On an appeal under subsection (1)(c), (2) or (3)(b), the Crown Court may make

such orders as may be necessary to give effect to its determination of the

appeal, and may also make such incidental or consequential orders as appear

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to it to be just.

     (5)    Any order made by the Crown Court on an appeal under subsection (1)(c) or

(2) (other than an order directing that an application be re-heard by a

magistrates’ court) is for the purpose of section 106(7) or 107(7) (respectively)

to be treated as if it were an order of the court from which the appeal was

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brought (and not an order of the Crown Court).

 109   Offence: breach of SOPO or interim SOPO

     (1)    A person commits an offence if, without reasonable excuse, he does anything

which he is prohibited from doing by—

           (a)           a sexual offences prevention order;

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           (b)           an interim sexual offences prevention order;

           (c)           an order under section 5A of the Sex Offenders Act 1997 (c. 51)

(restraining orders);

           (d)           an order under section 2, 2A or 20 of the Crime and Disorder Act 1998

(sex offender orders and interim orders made in England and Wales

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and in Scotland);

           (e)           an order under Article 6 or 6A of the Criminal Justice (Northern

Ireland) Order 1998 (sex offender orders and interim orders made in

Northern Ireland).

     (2)    A person guilty of an offence under this section is liable—

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Sexual Offences Bill [HL]
Part 2 — Notification and orders

    56

 

           (a)           on summary conviction, to imprisonment for a term not exceeding 6

months or a fine not exceeding the statutory maximum or both;

           (b)           on conviction on indictment, to imprisonment for a term not exceeding

5 years.

     (3)    Where a person is convicted of an offence under this section, it is not open to

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the court by or before which he is convicted to make, in respect of the offence,

an order for conditional discharge.

Risk of sexual harm orders

 110   Risk of sexual harm orders: applications, grounds and effect

     (1)    A chief officer of police may by complaint to the magistrates’ court apply for

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an order under this section (a “risk of sexual harm order”) in respect of a person

aged 18 or over (“the defendant”) who he believes is in, or is intending to come

to, his police area if it appears to the chief officer that —

           (a)           the defendant has on at least two occasions, whether before or after the

commencement of this Part, done an act within subsection (3), and

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           (b)           as a result of those acts, there is reasonable cause to believe that it is

necessary for such an order to be made.

     (2)    An application under subsection (1) may be made to any magistrates’ court

whose commission area includes—

           (a)           any part of the applicant’s police area, or

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           (b)           any place where it is alleged that the defendant acted in a way

mentioned in subsection (1)(a).

     (3)    The acts are—

           (a)           engaging in sexual activity involving a child or in the presence of a

child;

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           (b)           causing or inciting a child to watch a person engaging in sexual activity

or to look at a moving or still image that is sexual;

           (c)           giving a child anything that relates to sexual activity or contains a

reference to such activity;

           (d)           communicating with a child, where any part of the communication is

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sexual.

     (4)    On the application, the court may make a risk of sexual harm order if it is

satisfied that—

           (a)           the defendant has on at least two occasions, whether before or after the

commencement of this section, done an act within subsection (3); and

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           (b)           it is necessary to make such an order, for the purpose of protecting

children generally or any child from harm from the defendant.

     (5)    Such an order—

           (a)           prohibits the defendant from doing anything described in the order;

           (b)           has effect for a fixed period (not less than 5 years) specified in the order

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or until further order.

     (6)    The only prohibitions that may be imposed are those necessary for the purpose

of protecting children generally or any child from harm from the defendant.

 

 

Sexual Offences Bill [HL]
Part 2 — Notification and orders

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     (7)    Where a court makes a risk of sexual harm order in relation to a person already

subject to such an order (whether made by that court or another), the earlier

order ceases to have effect.

 111   Section 110: interpretation

     (1)    Subsections (2) to (7) apply for the purposes of section 110.

5

     (2)    “Protecting children generally or any child from harm from the defendant”

means protecting children generally or any child from physical or

psychological harm, caused by the defendant doing acts within section 110(3).

     (3)    “Child” means a person under 16.

     (4)    “Image” means an image produced by any means, whether of a real or

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imaginary subject.

     (5)    “Sexual activity” means an activity that a reasonable person would, in all the

circumstances but regardless of any person’s purpose, consider to be sexual.

     (6)    A communication is sexual if—

           (a)           any part of it relates to sexual activity, or

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           (b)           a reasonable person would, in all the circumstances but regardless of

any person’s purpose, consider that any part of the communication is

sexual.

     (7)    An image is sexual if—

           (a)           any part of it relates to sexual activity, or

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           (b)           a reasonable person would, in all the circumstances but regardless of

any person’s purpose, consider that any part of the image is sexual.

     (8)    In this section, as it applies to Northern Ireland, subsection (3) has effect with

the substitution of “17” for “16”.

 112   Risk of sexual harm orders: variations, renewals and discharges

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     (1)    A person within subsection (2) may by complaint to the appropriate court

apply for an order varying, renewing or discharging a risk of sexual harm

order.

     (2)    The persons are—

           (a)           the defendant;

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           (b)           the chief officer of police on whose application the risk of sexual harm

order was made;

           (c)           the chief officer of police for the area in which the defendant resides;

           (d)           a chief officer of police who believes that the defendant is in, or is

intending to come to, his police area.

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     (3)    Subject to subsections (4) and (5), on the application the court, after hearing the

person making the application and (if they wish to be heard) the other persons

mentioned in subsection (2), may make any order, varying, renewing or

discharging the risk of sexual harm order, that the court considers appropriate.

     (4)    An order may be renewed, or varied so as to impose additional prohibitions on

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the defendant, only if it is necessary to do so for the purpose of protecting

children generally or any child from harm from the defendant.

 

 

 
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