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Sexual Offences Bill [HL]


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

    58

 

 112   Section 110: qualifying offenders

     (1)    A person is a qualifying offender for the purposes of section 110 if, whether

before or after the commencement of this Part, he—

           (a)           has been convicted of an offence within subsection (2),

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

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

charged against him in respect of such an offence, or

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

respect of such an offence.

     (2)    The offences are—

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           (a)           an offence within any of paragraphs 13 to 15, 41 to 43, 60, 70 and 74 of

Schedule 3;

           (b)           an offence within paragraph 28 of that Schedule, if the intended offence

was an offence against a person under 16;

           (c)           an offence within paragraph 82 of that Schedule, if—

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                  (i)                 the corresponding civil offence is an offence within any of

paragraphs 13 to 15 of that Schedule;

                  (ii)                the corresponding civil offence is an offence within paragraph

28 of that Schedule, and the intended offence was an offence

against a person under 16; or

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                  (iii)               the corresponding civil offence is an offence within any of

paragraphs 1 to 12, 16 to 27 and 29 to 32 of that Schedule, and

the victim of the offence was under 16 at the time of the offence.

           (d)           an offence within any other paragraph of that Schedule, if the victim of

the offence was under 16 at the time of the offence.

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     (3)    A person is also a qualifying offender for the purposes of section 110 if, under

the law in force in a country outside the United Kingdom and whether before

or after the commencement of this Part—

           (a)           he has been convicted of a relevant offence (whether or not he has been

punished for it),

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           (b)           a court exercising jurisdiction under that law has made in respect of a

relevant offence a finding equivalent to a finding that he is not guilty by

reason of insanity,

           (c)           such a court has made in respect of a relevant offence a finding

equivalent to a finding that he is under a disability and did the act

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charged against him in respect of the offence, or

           (d)           he has been cautioned in respect of a relevant offence.

     (4)    In subsection (3), “relevant offence” means an act which—

           (a)           constituted an offence under the law in force in the country concerned,

and

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           (b)           would have constituted an offence within subsection (2) if it had been

done in England and Wales or Northern Ireland.

     (5)    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

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

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     (6)    Subject to subsection (7), on an application under section 110 the condition in

subsection (4)(b) above (where relevant) is to be taken as met unless, not later

 

 

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

    59

 

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

notice—

           (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

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

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

prove that the condition is met without service of a notice under subsection (6).

 113   Foreign travel orders: effect

     (1)    A foreign travel order has effect for a fixed period of not more than 6 months,

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specified in the order.

     (2)    The order prohibits the defendant from doing whichever of the following is

specified in the order—

           (a)           travelling to any country outside the United Kingdom named or

described in the order,

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           (b)           travelling to any country outside the United Kingdom other than a

country named or described in the order, or

           (c)           travelling to any country outside the United Kingdom.

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

the purpose of protecting children generally or any child from serious sexual

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harm from the defendant outside the United Kingdom.

     (4)    If at any time while an order (as renewed from time to time) has effect a

defendant is not a relevant offender, the order causes him to be subject to the

requirements imposed by regulations made under section 88(1) (and for these

purposes the defendant is to be treated as if he were a relevant offender).

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     (5)    Where a court makes a foreign travel 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.

     (6)    Section 111(2) applies for the purposes of this section and section 114.

 114   Foreign travel 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 foreign travel order.

     (2)    The persons are—

           (a)           the defendant;

           (b)           the chief officer of police on whose application the foreign travel order

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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.

     (3)    Subject to subsection (4), on the application the court, after hearing the person

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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 foreign travel order, that the court considers appropriate.

 

 

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

    60

 

     (4)    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

children generally or any child from serious sexual harm from the defendant

outside the United Kingdom (and any renewed or varied order may contain

only such prohibitions as are necessary for this purpose).

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

           (a)           the court which made the foreign travel order;

           (b)           a magistrates’ court for the area in which the defendant resides; or

           (c)           where the application is made by a chief officer of police, any

magistrates’ court whose commission area includes any part of his

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police area.

 115   Foreign travel orders: appeals

     (1)    A defendant may appeal to the Crown Court—

           (a)           against the making of a foreign travel order;

           (b)           against the making of an order under section 114, or the refusal to make

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such an order.

     (2)    On any such appeal, 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 to it to be just.

     (3)    Any order made by the Crown Court on an appeal under subsection (1)(a)

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(other than an order directing that an application be re-heard by a magistrates’

court) is for the purposes of section 114(5) to be treated as if it were an order of

the court from which the appeal was brought (and not an order of the Crown

Court).

 116   Offence: breach of foreign travel order

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

which he is prohibited from doing by a foreign travel order.

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

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

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

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           (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

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

an order for conditional discharge.

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Risk of sexual harm orders

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

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

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

aged 18 or over (“the defendant”) who resides in his police area or who the

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chief officer believes is in, or is intending to come to, his police area if it appears

to the chief officer that—

 

 

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

    61

 

           (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

           (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

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whose commission area includes—

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

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

mentioned in subsection (1)(a).

     (3)    The acts are—

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

child;

           (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

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reference to such activity;

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

sexual.

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

satisfied that—

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           (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

           (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—

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           (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

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.

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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.

 118   Section 117: interpretation

     (1)    Subsections (2) to (7) apply for the purposes of section 117.

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     (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 117(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—

 

 

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

    62

 

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

           (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—

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

           (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”.

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

     (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—

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           (a)           the defendant;

           (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

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intending to come to, his police area.

     (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.

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     (4)    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

children generally or any child from harm from the defendant (and any

renewed or varied order may contain only such prohibitions as are necessary

for this purpose).

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

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

and—

           (a)                         where the application is made by a chief officer of police, that chief

officer, or

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

defendant resides.

     (6)    Section 118(2) applies for the purposes of this section.

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

           (a)           the court which made the risk of sexual harm order;

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           (b)           a magistrates’ court for the area in which the defendant resides; or

           (c)           where the application is made by a chief officer of police, any

magistrates’ court whose commission area includes any part of his

police area.

 

 

 
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