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Sexual Offences Bill [HL]


Sexual Offences Bill [HL]
Part 1 — Sexual Offences

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     (2)    Proceedings by virtue of this section may be brought only against a person who

was on 1st September 1997, or has since become, a British citizen or resident in

the United Kingdom.

     (3)    An act punishable under the law in force in any country or territory constitutes

an offence under that law for the purposes of this section, however it is

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described in that law.

     (4)    Subject to subsection (5), the condition in subsection (1)(a) is to be taken to be

met unless, not later than rules of court may provide, the defendant serves on

the prosecution a notice—

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

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the condition is not in his opinion met,

           (b)           showing his grounds for that opinion, and

           (c)           requiring the prosecution to prove that it is met.

     (5)    The court, if it thinks fit, may permit the defendant to require the prosecution

to prove that the condition is met without service of a notice under subsection

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(4).

     (6)    In the Crown Court the question whether the condition is met is to be decided

by the judge alone.

     (7)    Schedule 2 lists the sexual offences to which this section applies.

Supplementary and general

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 74    Exceptions to aiding, abetting and counselling

     (1)    A person is not guilty of aiding, abetting or counselling the commission against

a child of an offence to which this section applies if he acts for the purpose of—

           (a)           protecting the child from sexually transmitted infection,

           (b)           protecting the physical safety of the child, or

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           (c)           preventing the child from becoming pregnant,

            and not for the purpose of causing or encouraging either the activity

constituting the offence or the child’s participation in it.

     (2)    This section applies to—

           (a)           an offence under any of sections 6, 7 and 8 (offences against children

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under 13);

           (b)           an offence under section 10 (sexual activity with a child);

           (c)           an offence under section 14 which would be an offence under section 10

if the offender were aged 18;

           (d)           an offence under any of sections 18, 27, 32, 36 and 40 (sexual activity)

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against a person under 16.

     (3)    This section does not affect any other enactment or any rule of law restricting

the circumstances in which a person is guilty of aiding, abetting or counselling

an offence under this Part.

 75    “Consent”

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For the purposes of this Part, a person consents if he agrees by choice, and has

the freedom and capacity to make that choice.

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    35

 

 76    Presumptions about the absence of belief in consent

     (1)    If in proceedings for an offence to which this section applies it is proved—

           (a)           that the defendant did the relevant act,

           (b)           that the complainant did not consent to it,

           (c)           that any of the circumstances specified in subsection (2) existed, and

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           (d)           that the defendant knew that those circumstances existed,

            the defendant is to be taken not to have believed that the complainant

consented unless he proves that he did believe it.

     (2)    The circumstances are that—

           (a)           any person was, at the time of the relevant act or immediately before it

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began, using violence against the complainant or causing the

complainant to fear that immediate violence would be used against

him;

           (b)           any person was, at the time of the relevant act or immediately before it

began, causing the complainant to fear that violence was being used, or

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that immediate violence would be used, against another person;

           (c)           the complainant was, and the defendant was not, unlawfully detained

at the time of the relevant act;

           (d)           the complainant was asleep or otherwise unconscious at the time of the

relevant act;

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           (e)           because of the complainant’s physical disability, the complainant

would not have been able at the time of the relevant act to communicate

to the defendant whether the complainant consented.

     (3)    In subsection (2)(a) and (b), the reference to the time immediately before the

relevant act began is, in the case of an act which is one of a continuous series of

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sexual activities, a reference to the time immediately before the first sexual

activity began.

 77    Conclusive presumptions about consent

     (1)    Subsection (2) applies if, in proceedings for an offence to which this section

applies—

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           (a)           it is proved that the defendant did the relevant act and that the

complainant did not consent to it, and

           (b)           the only evidence adduced of circumstances from which the defendant

might have formed a belief that the complainant consented is—

                  (i)                 evidence of anything said or done by a third party, or

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                  (ii)                evidence of circumstances from which the defendant could not

have formed such a belief except on the grounds that they were

consistent with anything said or done by a third party.

     (2)    Where this subsection applies, it is to be conclusively presumed—

           (a)           that a reasonable person would in all the circumstances have doubted

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whether the complainant consented, and

           (b)           that the defendant did not act in a way that a reasonable person would

consider sufficient in all the circumstances to resolve such doubt.

     (3)    If in proceedings for an offence to which this section applies it is proved that

the defendant did the relevant act and that any of the circumstances specified

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in subsection (4) existed, it is to be conclusively presumed—

           (a)           that the complainant did not consent to the relevant act, and

 

 

Sexual Offences Bill [HL]
Part 1 — Sexual Offences

    36

 

           (b)           that the defendant did not believe that the complainant consented to

the relevant act.

     (4)    The circumstances referred to in subsection (3) are that—

           (a)           the defendant intentionally deceived the complainant as to the nature

or purpose of the relevant act;

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           (b)           the defendant intentionally induced the complainant to consent to the

relevant act by impersonating a person known personally to the

complainant.

 78    Sections 76 and 77: relevant acts

In relation to an offence to which sections 76 and 77 apply, references in those

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sections to the relevant act and to the complainant are to be read as follows—

 

Offence

 

Relevant Act

 
 

An offence under section 1 (rape).

 

The defendant intentionally

 
   

penetrating, with his penis, the

 
   

vagina, anus or mouth of another

 

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person (“the complainant”).

 
 

An offence under section 3

 

The defendant intentionally

 
 

(assault by penetration).

 

penetrating, with a part of his body

 
   

or anything else, the vagina or

 
   

anus of another person (“the

 

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complainant”), where the

 
   

penetration is sexual.

 
 

An offence under section 4

 

The defendant intentionally

 
 

(sexual assault).

 

touching another person (“the

 
   

complainant”), where the touching

 

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is sexual.

 
 

An offence under section 5

 

The defendant intentionally

 
 

(causing a person to engage in

 

causing another person (“the

 
 

sexual activity without consent).

 

complainant”) to engage in an

 
   

activity, where the activity is

 

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sexual.

 

 79    “Sexual”

For the purposes of this Part, penetration, touching or any other activity is

sexual if—

           (a)           from its nature, a reasonable person would consider that it may (at

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least) be sexual, and

           (b)           a reasonable person would consider that it is sexual because of its

nature, its circumstances or the purpose of any person in relation to it,

or all or some of those considerations.

 80    Part 1: general interpretation

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     (1)    The following apply for the purposes of this Part.

 

 

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

    37

 

     (2)    Penetration is a continuing act from entry to withdrawal.

     (3)    References to a part of the body include references to a part surgically

constructed (in particular, through gender reassignment surgery).

     (4)    “Mental disorder” has the meaning given by section 1 of the Mental Health Act

1983 (c. 20).

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     (5)    “Photograph” and “pseudo-photograph” have the same meaning as in the

Protection of Children Act 1978 (c. 37).

     (6)    Touching includes touching—

           (a)           with any part of the body,

           (b)           with anything else,

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           (c)           through anything,

            and in particular includes touching amounting to penetration.

     (7)    “Vagina” includes vulva.

     (8)    In relation to an animal, references to the vagina or anus include references to

any similar part.

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Part 2

Notification and orders

Notification requirements

 81    Persons becoming subject to notification requirements

     (1)    A person is subject to the notification requirements of this Part for the period

20

set out in section 83 (“the notification period”) if—

           (a)           he is convicted of an offence listed in Schedule 3;

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

           (c)           he is found to be under a disability and to have done the act charged

against him in respect of such an offence; or

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           (d)           in England and Wales or Northern Ireland, he is cautioned in respect of

such an offence.

     (2)    A person for the time being subject to the notification requirements of this Part

is referred to in this Part as a “relevant offender”.

 82    Persons formerly subject to Part 1 of the Sex Offenders Act 1997

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     (1)    A person is, from the commencement of this Part until the end of the

notification period, subject to the notification requirements of this Part if,

before the commencement of this Part—

           (a)           he was convicted of an offence listed in Schedule 3;

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

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           (c)           he was 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, he was cautioned in respect

of such an offence.

 

 

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

    38

 

     (2)    Subsection (1) does not apply if the notification period ended before the

commencement of this Part.

     (3)    Subsection (1)(a) does not apply to a conviction before 1st September 1997

unless, at the beginning of that day, the person—

           (a)           had not been dealt with in respect of the offence;

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           (b)           was serving a sentence of imprisonment or a term of service detention,

or was subject to a community order, in respect of the offence;

           (c)           was subject to supervision, having been released from prison after

serving the whole or part of a sentence of imprisonment in respect of

the offence; or

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           (d)           was detained in a hospital or was subject to a guardianship order,

following the conviction.

     (4)    Paragraphs (b) and (c) of subsection (1) do not apply to a finding made before

1st September 1997 unless, at the beginning of that day, the person—

           (a)           had not been dealt with in respect of the finding; or

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           (b)           was detained in a hospital, following the finding.

     (5)    Subsection (1)(d) does not apply to a caution given before 1st September 1997.

     (6)    A person who would have been within subsection (3)(b) or (d) or (4)(b) but for

the fact that at the beginning of 1st September 1997 he was unlawfully at large

or absent without leave, on temporary release or leave of absence, or on bail

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pending an appeal, is to be treated as being within that provision.

     (7)    Where, immediately before the commencement of this Part, an order under a

provision within subsection (8) was in force in respect of a person, the person

is subject to the notification requirements of this Part from that commencement

until the order is discharged or otherwise ceases to have effect.

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     (8)    The provisions are—

           (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);

           (c)           section 2A of the Crime and Disorder Act 1998 (interim orders made in

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England and Wales);

           (d)           section 20 of the Crime and Disorder Act 1998 (sex offender orders and

interim orders made in Scotland);

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

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

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           (f)           Article 6A of the Criminal Justice (Northern Ireland) Order 1998

(interim orders made in Northern Ireland).

 83    The notification period

     (1)    The notification period for a person within section 81(1) or 82(1) is the period

in the second column of the following Table opposite the description that

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applies to him.

 

 

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

    39

 
 

TABLE

 
 

Description of relevant offender

Notification period

 
 

A person who, in respect of the offence,

An indefinite period beginning with

 
 

is or has been sentenced to

the relevant date

 
 

imprisonment for life or for a term of 30

  

5

 

months or more

  
 

A person who, in respect of the offence,

An indefinite period beginning with

 
 

has been made the subject of an order

that date

 
 

under section 210F(1) of the Criminal

  
 

Procedure (Scotland) Act 1995 (order

  

10

 

for lifelong restriction)

  
 

A person who, in respect of the offence

An indefinite period beginning with

 
 

or finding, is or has been admitted to a

that date

 
 

hospital subject to a restriction order

  
 

A person who, in respect of the offence,

10 years beginning with that date

 

15

 

is or has been sentenced to

  
 

imprisonment for a term of more than 6

  
 

months but less than 30 months

  
 

A person who, in respect of the offence,

7 years beginning with that date

 
 

is or has been sentenced to

  

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imprisonment for a term of 6 months or

  
 

less

  
 

A person who, in respect of the offence

7 years beginning with that date

 
 

or finding, is or has been admitted to a

  
 

hospital without being subject to a

  

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restriction order

  
 

A person within section 81(1)(d)

2 years beginning with that date

 
 

A person in whose case an order for

The period of conditional discharge or,

 
 

conditional discharge or, in Scotland, a

in Scotland, the probation period

 
 

probation order, is made in respect of

  

30

 

the offence

  
 

A person of any other description

5 years beginning with the relevant

 
  

date

 

     (2)    Where a person is under 18 on the relevant date, subsection (1) has effect as if

for any reference to a period of 10 years, 7 years, 5 years or 2 years there were

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substituted a reference to one-half of that period.

     (3)    Subsection (4) applies where a relevant offender within section 81(1)(a) or

82(1)(a) is or has been sentenced, in respect of two or more offences listed in

Schedule 3

           (a)           to consecutive terms of imprisonment; or

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           (b)           to terms of imprisonment which are partly concurrent.

 

 

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

    40

 

     (4)    Where this subsection applies, subsection (1) has effect as if the relevant

offender were or had been sentenced, in respect of each of the offences, to a

term of imprisonment which —

           (a)           in the case of consecutive terms, is equal to the aggregate of those terms;

           (b)           in the case of partly concurrent terms (X and Y, which overlap for a

5

period Z), is equal to X plus Y minus Z.

     (5)    Where a relevant offender the subject of a finding within section 81(1)(c) or

82(1)(c) is subsequently tried for the offence, the notification period relating to

the finding ends at the conclusion of the trial.

     (6)    In this Part, “relevant date” means—

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           (a)           in the case of a person within section 81(1)(a) or 82(1)(a), the date of the

conviction;

           (b)           in the case of a person within section 81(1)(b) or (c) or 82(1)(b) or (c), the

date of the finding;

           (c)           in the case of a person within section 81(1)(d) or 82(1)(d), the date of the

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caution.

 84    Notification requirements: initial notification

     (1)    A relevant offender must, within the period of 3 days beginning with the

relevant date (or, if later, the commencement of this Part), notify to the police

the information set out in subsection (5).

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     (2)    Subsection (1) does not apply to a relevant offender in respect of a conviction,

finding or caution within section 81(1) if—

           (a)           immediately before the conviction, finding or caution, he was subject to

the notification requirements of this Part as a result of another

conviction, finding or caution or an order of the court (“the earlier

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event”),

           (b)           at that time, he had made a notification under subsection (1) in respect

of the earlier event, and

           (c)           throughout the period referred to in subsection (1), he remains subject

to the notification requirements as a result of the earlier event.

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     (3)    Subsection (1) does not apply to a relevant offender in respect of a conviction,

finding or caution within section 82(1) if the offender complied with section

2(1) of the Sex Offenders Act 1997 (c. 51) in respect of the conviction, finding or

caution.

     (4)    Where a notification order is made in respect of a conviction, finding or

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caution, subsection (1) does not apply to the relevant offender in respect of the

conviction, finding or caution if—

           (a)           immediately before the order was made, he was subject to the

notification requirements of this Part as a result of another conviction,

finding or caution or an order of the court (“the earlier event”),

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           (b)           at that time, he had made a notification under subsection (1) in respect

of the earlier event, and

           (c)           throughout the period referred to in subsection (1), he remains subject

to the notification requirements as a result of the earlier event.

     (5)    The information is—

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           (a)           the relevant offender’s date of birth;

           (b)           his national insurance number;

 

 

 
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