House of Lords - Explanatory Note
Sexual Offences Bill [HL] - continued          House of Lords

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Clause 106: Sexual offences prevention orders: variations, renewals and discharges

91.     Clause 106 enables either the offender subject to the order or the various chief officers of police listed in subsection (2) to apply for an order to be varied, renewed or discharged. The defendant might, for example, seek to vary an order if he finds the prohibitions are operating on him unduly harshly. He might apply for a discharge if he intended to emigrate. A chief officer of police who believes the defendant is moving to his area might apply for a variation if, for example, the order was made when the defendant was living in another part of the country and only restricted the defendant's behaviour in that original area. It may also be necessary to seek a renewal of an order at the time an existing order expires, where there is evidence that the defendant still requires the measures of restraint imposed in the original order. Subsection (8) provides that the procedure in this clause will apply where variations, renewals and discharges are sought in respect of restraining orders and sex offender orders made prior to the commencement of this Part of the Act.

Clause 107: Interim sexual offences prevention orders

92.     Clause 107 allows the police to apply for an interim sexual offences prevention order where an application has been made for a full order in respect of an offender living in the community. The purpose is to enable prohibitions to be placed on the offender's behaviour and to ensure that he will be subject to the notification requirements pending the application for the full order being determined. The interim order will be for a fixed period and will cease to have effect at the end of that period or when a decision is made on the full order. The effect of subsections (5) and (6) is that the defendant will be subject to the notification requirements for the duration of the order, with the notification period to run from the date of service of the order. This means, for example, that the defendant will have to comply with the initial notification requirement (at clause 85(1)) within 3 days of the service of the order.

Clause 108: SOPOs and interim SOPOs: appeals

93.     Clause 108 provides for appeals against the making of an order or an interim order. The appeals process should be used where the offender is challenging the fact that an order has been imposed at all. Where he wants to challenge any particular prohibitions in the order he should use the procedure relating to applications for variations under clauses 106 or 107 instead. Subsections (1) and (2) explain the process by which an appeal should be brought depending on the circumstances in which the order was made. Where an order was imposed following a conviction for a triggering offence, the defendant should follow the usual appeal process that would apply if he were appealing against sentence. So, where the order was made in the Crown Court, the appeal against the order should be made to the Court of Appeal. Where the order was made in the magistrates' court or the youth court, the appeal is to the Crown Court. Where the order was made following an application by the police in respect of an offender in the community, the appeal will lie to the Crown Court. Subsection (5) relates to orders made by the Crown Court following an appeal against an order imposed on an offender in the community. It provides that the order made by the Crown Court is to be treated as if it was made by the magistrates' court that imposed the original order, for the purposes of determining where any application for variation, renewal or discharge should be heard (under clause 106 or 107).

Clause 109: Offence: breach of SOPO or interim SOPO

94.     Failure, without reasonable excuse, to comply with any prohibition in a sexual offences prevention order or an interim sexual offences prevention order is a criminal offence. Breach of any restraining order or sex offender order will also be an offence under this section.

Clause 110: Risk of sexual harm order: applications, grounds and effects.

95.     This and the following six clauses relate to a civil, preventative order for which the police can apply to a Magistrates' Court in respect of a person over the age of 18 who has on at least two occasions engaged in sexually explicit conduct or communication with a child or children and there is reasonable cause to believe that the order is necessary to protect a child or children from harm arising out of future such acts by the defendant. The defendant may or may not have a conviction for a sexual (or any other) offence. The child or children must be under 16 (clause 111(3)). Subsection (1) explains the circumstances in which a risk of sexual harm order may be made against the defendant. The acts in subsection (3) which constitute the trigger behaviour for an order all involve explicitly sexual communication or conduct with or towards and child. The terms "image" and "sexual activity" are defined and an explanation is given of when a communication is sexual in clause 111. The types of behaviour at (3)(a) and (b) may amount to a criminal offence, for example under clauses 9 to 13. However the trigger behaviour need not amount to criminal conduct. Subsection (3)(c) would cover a person giving condoms or a sex toy to a child. Subsection (3)(d) would cover a person sending pornographic images to a child over the Internet or describing the sexual acts he would like to carry out on the child. An order will not be made unless the court is satisfied (under subsection (4)(b)) that further such acts would cause a child or children physical or psychological harm (clause 110(2)).

Clause 111: Section 110: Interpretation.

96.     The definition of "image" at subsection (4) can include photographs, cartoon strips, email attachments and drawings. The references to "but regardless of any person's purpose" in subsections (5) to (7) restricts the definition of "sexual" to where the reasonable person, just from the circumstances of the activity, communication or image, would consider it to be sexual, without having to enquire into the motive behind it. This covers matters which, in all the circumstances, are explicitly or overtly sexual, for example a pornographic film or a description of oral sex. However, where for example a double entendre is used, the reasonable person may have to consider the speaker's motive for saying it before he could decide whether the communication was sexual. This would therefore not come within the definition at subsection (6) because it is not possible to tell just from the circumstances that is was sexual.)

Clause 112: Risk of sexual harm order: variations, renewals and discharges

97.     Clause 112 provides for variations, renewals and discharges of the risk of sexual harm order. The procedure here is the same as that used to vary, renew or discharge a sexual offences prevention order that was imposed on an offender in the community (the application is by complaint to the Magistrates' Court), and is explained in the notes to clause 106. (As the risk of sexual harm order is a new order, not a re-enactment, there is no equivalent provision to clause 106(8).)

Clause 113: Interim Risk of Sexual Harm Orders

98.     This clause allows the police to apply for an interim risk of sexual harm order where an application has been made for a full order in respect of a defendant, but has not yet been decided upon. The interim order will be for a fixed period and will cease to have effect at the end of that period or when a decision is made on the full order.

Clause 114: RSHOs and Interim RSHOs : appeals

99.     The appeals process explained in this clause should be used where the defendant if challenging the fact that an order has been imposed at all. Where he wants to challenge any particular prohibitions in the order he should use the procedure relating to applications for variations under clause 112 instead. Subsection (3) provides that (save for where it directs that an application should be re-heard by the Magistrates' Court) an order made by the Crown Court is to be treated as if it were made by the Magistrates' Court which made the original order, for the purposes of determining where any application for variation, renewal or discharge should be heard (under clauses 112(7) or 113(5)).

Clause 115: Offence: breach of RSHO or Interim RSHO

100.     It is a criminal offence to breach a risk of sexual harm order or interim risk of sexual harm order unless the defendant has a reasonable excuse for doing so.

Clause 116: Effect of a conviction etc. of an offence under Section 115

101.     Subsection (2) relates to those defendants who are already "relevant offenders" (that is, subject to the notification requirements of this Part - see clause 83) when convicted etc. of an offence under clause 113. Such a person will remain subject to these notification requirements for the duration of the "relevant order" (defined in subsection (5)). That is, the duration of the risk of sexual harm order that he breached, or if he breached an interim order, either for the duration of that order, or is a main order is made, the duration of the main order. However, if the notification period (see clause 84) which originally applied to the person lasts for longer than the order, the person remains subject to the notification requirements until the end of that longer period. Subsection 9(3) relates to those defendants who are not already subject to the notification requirements when convicted of an offence under clause 115. Such a person will become subject to notification requirements as a result of that offence until the relevant order (explained above) ceases to have effect. For the purpose of the notification requirements, the "relevant date" (see clause 84) is the date when the person is convicted etc. of the clause 115 offence. This means, for example, that the person must comply with the initial notification requirement (at clause 85(1)) within 3 days of that conviction etc.

Clause 117: Power to amend Schedules 2 and 3

     102.     Clause 117 allows the Secretary of State to amend by statutory instrument the list of offences in Schedules 2 and 3 and any of the age or sentence thresholds that apply to those offences. These are the offences which can trigger a sexual offences prevention order. Such amendment will not however extend the notification requirements of this Part retrospectively by, for example, making persons convicted of an offence added to Schedule 2 subject to the notification requirements, where they were convicted of that offence before the amendment was made. Subsection (3) provides, however, that it will be possible, where a new offence is being added, for the police to apply for a sexual offences prevention order or an interim order in respect of offenders convicted before the date of the amendment. The amending order will be subject to the affirmative resolution procedure (clause 123(2)). For Scotland, the regulations will be made by Scottish Ministers and laid before the Scottish Parliament.

Clause 118: Young offenders: application

103.     Young offenders are not sentenced to periods of imprisonment in the same way as adults. Clause 118 therefore lists the sentences and periods of detention applicable to young offenders that should be considered as equivalent to a sentence of imprisonment for the purposes of working out the notification period.

Clause 119: Part 2: General interpretation

104.     Clause 119 defines certain terms used in this Part of the Act.

Clause 120: Conditional discharges and probation orders

105.     Clause 120 provides that various provisions in other legislation to the effect that a conviction with absolute or conditional discharge is deemed not to be a conviction, are not to apply for the purposes of this Part of the Act.

Clause 121: Interpretation: mentally disordered offenders

106.     Clause 121 clarifies how the provisions in this Part apply in respect of mentally disordered offenders.

Clause 122: Part 2: Northern Ireland

     107.     This clause makes minor technical modifications in relation to the application in Northern Ireland of Part 2 of the Bill's provisions.

Part 3: General

Clause 126 Commencement

     108.     Clause 126 establishes a power for the Secretary of State to make a statutory instrument setting out how the measures included in this Act will come into force. Subsection (2) sets out what such an order may contain. It allows provision to be made for different parts of the Act to commence at different times. It also allows for the order to contain transitional provisions, for example to cover the transitional arrangements in respect of offenders who are subject to restrictions applied under a sex offender order. The provisions relating to Scotland that are within the devolved competence will be commenced by Scottish Ministers.

     FINANCIAL EFFECTS AND EFFECTS ON PUBLIC SERVICE MANPOWER

     109.     The financial effects of the Bill and the effects on public service and manpower will be minimal. There may be a minor impact on the prison population and its associated costs in the longer-term, and a small impact on police and court resources, but no additional financial provision will be necessary.

SUMMARY OF THE REGULATORY APPRAISAL

110.     The Regulatory Impact Unit of the Cabinet Office is content that no regulatory impact assessment is required.

EUROPEAN CONVENTION OF HUMAN RIGHTS

111.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before the Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Lord Falconer of Thoroton, Minister of State in the Home Office, has made the following statement—

    "In my view the provisions of the Sexual Offences Bill [HL] are compatible with the Convention rights."

COMMENCEMENT

112.     The provisions of the Bill will come into force on days that the Secretary of State will specify by order under clause 126.

 
 
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Prepared: 29 January 2003