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Sexual Offences Bill [HL]


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

    63

 

 120   Interim risk of sexual harm orders

     (1)    This section applies where an application for a risk of sexual harm order (“the

main application”) has not been determined.

     (2)    An application for an order under this section (“an interim risk of sexual harm

order”)—

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

or

           (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.

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

harm order, prohibiting the defendant from doing anything described in the

order.

     (4)    Such an order—

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

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

of the main application.

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

the interim risk of sexual harm order for the order to be varied, renewed or

discharged.

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 121   RSHOs and interim RSHOs: appeals

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

           (a)           against the making of a risk of sexual harm order;

           (b)           against the making of an interim risk of sexual harm order; or

           (c)           against the making of an order under section 119, 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) or

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

magistrates’ court) is for the purpose of section 119(7) or 120(5) (respectively)

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).

 122   Offence: breach of RSHO or interim RSHO

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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)           a risk of sexual harm order; or

           (b)           an interim risk of sexual harm order.

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

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           (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.

 

 

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

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     (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.

 123   Effect of conviction etc. of an offence under section 122

     (1)    This section applies to a person (“the defendant”) who—

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           (a)           is convicted of an offence under section 122;

           (b)           is found not guilty of such an offence by reason of insanity;

           (c)           is 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, is cautioned in respect of

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such an offence.

     (2)    Where —

           (a)           a defendant was a relevant offender immediately before this section

applied to him, and

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

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

renewed from time to time) has effect,

            the defendant remains subject to the notification requirements.

     (3)    Where the defendant was not a relevant offender immediately before this

section applied to him—

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           (a)           this section causes the defendant to become subject to the notification

requirements of this Part from the time the section first applies to him

until the relevant order (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

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subsection (4).

     (4)    The “relevant date” is the date on which this section first applies to the

defendant.

     (5)    In this section “relevant order” means—

           (a)           where the conviction, finding or caution within subsection (1) is in

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respect of a breach of a risk of sexual harm order, that order;

           (b)           where the conviction, finding or caution within subsection (1) is in

respect of a breach of an interim risk of sexual harm order, any risk of

sexual harm order made on the hearing of the application to which the

interim risk of sexual harm order relates or, if no such order is made,

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the interim risk of sexual harm order.

Power to amend Schedules 3 and 4

 124   Power to amend Schedules 3 and 4

     (1)    The Secretary of State may by order amend Schedule 3 or 4.

     (2)    Subject to subsection (3), an amendment within subsection (4) does not apply

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to convictions, findings and cautions before the amendment takes effect.

 

 

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

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     (3)    For the purposes of sections 104 and 112, an amendment within subsection (4)

applies to convictions, findings and cautions before as well as after the

amendment takes effect.

     (4)    An amendment is within this subsection if it—

           (a)           adds an offence,

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           (b)           removes a threshold relating to an offence, or

           (c)           changes a threshold in such a way as to cause an offence committed by

or against a person of a particular age or in certain circumstances, or

resulting in a particular disposal, to be within a Schedule when it

would not otherwise be.

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General

 125   Young offenders: application

This Part applies to—

           (a)           a period of detention which a person is liable to serve under a detention

and training order, or a secure training order,

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           (b)           a period for which a person is ordered to be detained in residential

accommodation under section 44(1) of the Criminal Procedure

(Scotland) Act 1995 (c. 46),

           (c)           a period of training in a training school, or of custody in a remand

centre, which a person is liable to undergo or serve by virtue of an order

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under section 74(1)(a) or (e) of the Children and Young Persons Act

(Northern Ireland) 1968 (c. 34 (N.I.)),

           (d)           a period for which a person is ordered to be detained in a juvenile

justice centre under Article 39 of the Criminal Justice (Children)

(Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)),

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           (e)           a period for which a person is ordered to be kept in secure

accommodation under Article 44A of the Order referred to in

paragraph (d),

           (f)           a sentence of detention in a young offender institution, a young

offenders institution or a young offenders centre,

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           (g)           a sentence under a custodial order within the meaning of section 71AA

of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955

(3 & 4 Eliz. 2 c. 19) or section 43AA of the Naval Discipline Act 1957

(c. 53),

           (h)           a sentence of detention under section 90 or 91 of the Powers of Criminal

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Courts (Sentencing) Act 2000 (c. 6), section 208 of the Criminal

Procedure (Scotland) Act 1995 or Article 45 of the Criminal Justice

(Children) (Northern Ireland) Order 1998,

           (i)           a sentence of custody for life under section 93 or 94 of the Powers of

Criminal Courts (Sentencing) Act 2000,

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           (j)           a sentence of detention, or custody for life, under section 71A of the

Army Act 1955 or the Air Force Act 1955 or section 43A of the Naval

Discipline Act 1957,

            as it applies to an equivalent sentence of imprisonment; and references in this

Part to prison or imprisonment are to be interpreted accordingly.

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

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 126   Offences with thresholds

     (1)    This section applies to an offence which in Schedule 3 is listed subject to a

condition relating to the way in which the defendant is dealt with in respect of

the offence or (where a relevant finding has been made in respect of him) in

respect of the finding.

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     (2)    For the purposes of this Part (including in particular section 84(6))—

           (a)           a person is to be regarded as convicted of such an offence, or

           (b)           (as the case may be) a relevant finding in relation to such an offence is

to be regarded as made,

            at the time when the condition is met.

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     (3)    In the following subsections, references to a foreign offence are references to an

act which—

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

United Kingdom (“the relevant foreign law”), and

           (b)           would have constituted an offence to which this section applies (but not

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an offence, listed in Schedule 3, to which this section does not apply) if

it had been done in any part of the United Kingdom.

     (4)    In relation to a foreign offence, references to the corresponding UK offence are

references to the offence (or any offence) to which subsection (3)(b) applies in

the case of that foreign offence.

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     (5)    For the purposes of this Part, a person is to be regarded as convicted under the

relevant foreign law of a foreign offence at the time when he is, in respect of the

offence, dealt with under that law in a way equivalent to that mentioned in

Schedule 3 as it applies to the corresponding UK offence.

     (6)    Where in the case of any person a court exercising jurisdiction under the

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relevant foreign law makes in respect of a foreign offence a finding equivalent

to a relevant finding, the court’s finding is, for the purposes of this Part, to be

regarded as made at the time when the person is, in respect of the finding, dealt

with under that law in a way equivalent to that mentioned in Schedule 3 as it

applies to the corresponding UK offence.

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     (7)    Where (by virtue of an order under section 124 or otherwise) an offence is listed

in Schedule 4 subject to a condition such as is mentioned in subsection (1), this

section applies to that offence as if references to Schedule 3 were references to

Schedule 4.

     (8)    In this section, “relevant finding”, in relation to an offence, means—

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           (a)           a finding that a person is not guilty of the offence by reason of insanity,

or

           (b)           a finding that a person is under a disability and did the act charged

against him in respect of the offence.

 127   Part 2: general interpretation

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In this Part—

                      “admitted to a hospital” means admitted to a hospital under—

                  (a)                 section 37 of the Mental Health Act 1983 (c. 20), section 57(2)(a)

or 58 of the Criminal Procedure (Scotland) Act 1995 (c. 46) or

Article 44 or 50A(2) of the Mental Health (Northern Ireland)

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Order 1986 (S.I. 1986/595 (N.I. 4));

 

 

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

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                  (b)                 Schedule 1 to the Criminal Procedure (Insanity and Unfitness to

Plead) Act 1991 (c. 25); or

                  (c)                 regulations made under subsection (3) of section 116B of the

Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955

(3 & 4 Eliz. 2 c. 19) or section 63B of the Naval Discipline Act

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1957 (c. 53);

                      “cautioned” means—

                  (a)                 cautioned by a police officer after the person concerned has

admitted the offence, or

                  (b)                 reprimanded or warned within the meaning given by section 65

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of the Crime and Disorder Act 1998 (c. 37),

                            and “caution” is to be interpreted accordingly;

                      “community order” means—

                  (a)                 a community order within the meaning of the Powers of

Criminal Courts (Sentencing) Act 2000 (c. 6);

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                  (b)                 a probation order or community service order under the

Criminal Procedure (Scotland) Act 1995 (c. 46) or a supervised

attendance order made in pursuance of section 235 of that Act;

                  (c)                 a community order within the meaning of the Criminal Justice

(Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)), a

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probation order under section 1 of the Probation Act (Northern

Ireland) 1950 (c. 7 (N.I.)) or a community service order under

Article 7 of the Treatment of Offenders (Northern Ireland)

Order 1976 (S.I. 1976/226 (N.I. 40)); or

                  (d)                 a community supervision order under paragraph 4 of Schedule

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5A to the Army Act 1955 or the Air Force Act 1955 or Schedule

4A to the Naval Discipline Act 1957;

                      “conviction” includes a finding of guilt by a court-martial, and

“convicted” is to be interpreted accordingly;

                      “country” includes territory;

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                      “detained in a hospital” means detained in a hospital under—

                  (a)                 Part 3 of the Mental Health Act 1983 (c. 20), section 71 of the

Mental Health (Scotland) Act 1984 (c. 36), Part 6 of the Criminal

Procedure (Scotland) Act 1995 or Part III of the Mental Health

(Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4));

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                  (b)                 Schedule 1 to the Criminal Procedure (Insanity and Unfitness to

Plead) Act 1991; or

                  (c)                 regulations made under subsection (3) of section 116B of the

Army Act 1955 or the Air Force Act 1955 or section 63B of the

Naval Discipline Act 1957;

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                      “guardianship order” means a guardianship order under section 37 of the

Mental Health Act 1983, section 58 of the Criminal Procedure

(Scotland) Act 1995 or Article 44 of the Mental Health (Northern

Ireland) Order 1986;

                      “home address” has the meaning given by section 85(7);

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                      “interim notification order” has the meaning given by section 99(2);

                      “interim risk of sexual harm order” has the meaning given by section

120(2);

                      “interim sexual offences prevention order” has the meaning given by

section 107(2);

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                      “local police area” has the meaning given by section 90(3);

 

 

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

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                      “local probation board” has the same meaning as in the Criminal Justice

and Court Services Act 2000 (c. 43);

                      “notification order” has the meaning given by section 96(1);

                      “notification period” has the meaning given by section 82(1);

                      “order for conditional discharge” has the meaning given by each of the

5

following—

                  (a)                 section 12(3) of the Powers of Criminal Courts (Sentencing) Act

2000 (c. 6);

                  (b)                 Article 2(2) of the Criminal Justice (Northern Ireland) Order

1996 (S.I. 1996/3160 (N.I. 24));

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                  (c)                 paragraph 2(1) of Schedule 5A to the Army Act 1955

(3 & 4 Eliz. 2 c. 18);

                  (d)                 paragraph 2(1) of Schedule 5A to the Air Force Act 1955

(3 & 4 Eliz. 2 c. 19);

                  (e)                 paragraph 2(1) of Schedule 4A to the Naval Discipline Act 1957

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(c. 53);

                      “parental responsibility” has the same meaning as in the Children Act

1989 (c. 41) or the Children (Northern Ireland) Order 1995 (S.I. 1995/

755 (N.I. 2)), and “parental responsibilities” has the same meaning as in

Part 1 of the Children (Scotland) Act 1995 (c. 36);

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                      “the period of conditional discharge” has the meaning given by each of

the following—

                  (a)                 section 12(3) of the Powers of Criminal Courts (Sentencing) Act

2000;

                  (b)                 Article 2(2) of the Criminal Justice (Northern Ireland) Order

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1996;

                  (c)                 paragraph 2(1) of Schedule 5A to the Army Act 1955;

                  (d)                 paragraph 2(1) of Schedule 5A to the Air Force Act 1955;

                  (e)                 paragraph 2(1) of Schedule 4A to the Naval Discipline Act 1957;

                      “probation order” has the meaning given by section 228(1) of the Criminal

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Procedure (Scotland) Act 1995 (c. 46);

                      “probation period” has the meaning given by section 307(1) of the

Criminal Procedure (Scotland) Act 1995;

                      “qualifying period” has the meaning given by section 86(6);

                      “relevant date” has the meaning given by section 84(6) (save in the

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circumstances mentioned in sections 97, 99, 105, 107 and 123);

                      “relevant offender” has the meaning given by section 82(2);

                      “restriction order” means—

                  (a)                 an order under section 41 of the Mental Health Act 1983 (c. 20),

section 57(2)(b) or 59 of the Criminal Procedure (Scotland) Act

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1995 or Article 47(1) of the Mental Health (Northern Ireland)

Order 1986 (S.I. 1986/595 (N.I. 4));

                  (b)                 a direction under paragraph 2(1)(b) of Schedule 1 to the

Criminal Procedure (Insanity and Unfitness to Plead) Act 1991

(c. 25) or Article 50A(3)(b) of the Mental Health (Northern

45

Ireland) Order 1986; or

                  (c)                 a direction under subsection (2) of section 116B of the Army Act

1955 or the Air Force Act 1955 or section 63B of the Naval

Discipline Act 1957;

                      “risk of sexual harm order” has the meaning given by section 117(1);

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

    69

 

                      “sexual offences prevention order” has the meaning given by section

103(1);

                      “supervision” means supervision in pursuance of an order made for the

purpose or, in the case of a person released from prison on licence, in

pursuance of a condition contained in his licence;

5

                      “term of service detention” means a term of detention awarded under

section 71(1)(e) of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force

Act 1955 (3 & 4 Eliz. 2 c. 19) or section 43(1)(e) of the Naval Discipline

Act 1957 (c. 53).

 128   Conditional discharges and probation orders

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     (1)    The following provisions do not apply for the purposes of this Part to a

conviction for an offence in respect of which an order for conditional discharge

or, in Scotland, a probation order is made—

           (a)           section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000

(c. 6) (conviction with absolute or conditional discharge deemed not to

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be a conviction);

           (b)           Article 6(1) of the Criminal Justice (Northern Ireland) Order 1996 (S.I.

1996/3160 (N.I. 24)) (conviction with absolute or conditional discharge

deemed not to be a conviction);

           (c)           section 247(1) of the Criminal Procedure (Scotland) Act 1995 (c. 46)

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(conviction with probation order or absolute discharge deemed not to

be a conviction);

           (d)           paragraph 5(1) of Schedule 5A to the Army Act 1955 or the Air Force

Act 1955 or Schedule 4A to the Naval Discipline Act 1957 (conviction

with absolute or conditional discharge deemed not to be a conviction).

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     (2)    This section applies only to convictions after the commencement of this Part.

 129   Interpretation: mentally disordered offenders

     (1)    In this Part, a reference to a conviction includes a reference to a finding of a

court in summary proceedings, where the court makes an order under an

enactment within subsection (2), that the accused did the act charged; and

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similar references are to be interpreted accordingly.

     (2)    The enactments are—

           (a)           section 37(3) of the Mental Health Act 1983 (c. 20);

           (b)           section 58(3) of the Criminal Procedure (Scotland) Act 1995;

           (c)           Article 44(4) of the Mental Health (Northern Ireland) Order 1986 (S.I.

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1986/595 (N.I. 4)).

     (3)    In this Part, a reference to a person being or having been found to be under a

disability and to have done the act charged against him in respect of an offence

includes a reference to his being or having been found—

           (a)           unfit to be tried for the offence;

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           (b)           to be insane so that his trial for the offence cannot or could not proceed;

or

           (c)           unfit to be tried and to have done the act charged against him in respect

of the offence.

     (4)    In section 127

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