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Sexual Offences Bill [HL]


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

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 101   Sections 95 to 98: Scotland

     (1)    Sections 95 to 98 apply to Scotland with the following modifications—

           (a)           references to a chief officer of police and to his police area are to be read,

respectively, as references to a chief constable and to the area of his

police force;

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           (b)           references to the defendant are to be read as references to the person in

respect of whom the order is sought or has effect;

           (c)           an application for a notification order or interim notification order is

made by summary application to any sheriff within whose sheriffdom

lies any part of the area of the applicant’s police force (references to “the

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court” being construed accordingly).

     (2)    A record of evidence shall be kept on any summary application made by virtue

of subsection (1)(c) above.

     (3)    The clerk of the court by which, by virtue of that subsection, a notification

order or interim notification order is made, varied, renewed or discharged

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shall cause a copy of, as the case may be—

           (a)           the order as so made, varied or renewed; or

           (b)           the interlocutor by which discharge is effected,

            to be given to the person named in the order or sent to him by registered post

or by the recorded delivery service (an acknowledgement or certificate of

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delivery of a copy so sent, issued by the Post Office, being sufficient evidence

of the delivery of the copy on the day specified in the acknowledgement or

certificate).

Sexual offences prevention orders

 102   Sexual offences prevention orders: applications and grounds

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     (1)    A court may make an order under this section in respect of a person (“the

defendant”) where any of subsections (2) to (4) applies to the defendant and—

           (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

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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

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

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respect of a conviction for an offence listed in Schedule 3 or 4.

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

respect of a finding—

           (a)           that he is not guilty of an offence listed in Schedule 3 or 4 by reason of

insanity, or

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

in respect of such an offence.

     (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

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

    51

 

           (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

an order under this section in respect of a person who resides in his police area

or who the chief officer believes is in, or is intending to come to, his police area

if it appears to the chief officer that—

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           (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

made.

     (6)    An application under subsection (5) 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 person acted in a way mentioned

in subsection (5)(b).

 103   SOPOs: further provision as respects Scotland

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     (1)    A chief constable may apply for an order under this section in respect of a

person who he believes is in, or is intending to come to, the area of his police

force if it appears to the chief constable that—

           (a)           the person has been convicted of, found not guilty by reason of insanity

of or found to be under a disability and to have done the act charged

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against him in respect of—

                  (i)                 an offence listed in paragraph 57 of Schedule 3; or

                  (ii)                before the commencement of this Part, an offence in Scotland

other than is mentioned in paragraphs 33 to 56 of that Schedule

if the chief constable considers that had the conviction or

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finding been after such commencement it is likely that a

determination such as is mentioned in paragraph 57 would

have been made in relation to the offence; and

           (b)           the person has since the conviction or finding acted in such a way as to

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

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be made.

     (2)    An application under subsection (1) may be made by summary application to

a sheriff within whose sheriffdom lies—

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

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

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in subsection (1)(b).

     (3)    The sheriff may make the order where satisfied—

           (a)           that the person’s behaviour since the conviction or finding makes it

necessary to make such an order, for the purposes of protecting the

public or any particular members of the public from serious sexual

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harm from the person; and

           (b)           where the application is by virtue of subsection (1)(a)(ii), that there was

a significant sexual aspect to the person’s behaviour in committing the

offence.

     (4)    Subsection (3) of section 104 applies for the purposes of this section as it applies

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for the purposes of section 102 and subsections (2) and (3) of section 110 apply

in relation to a summary application made by virtue of subsection (1) as they

apply in relation to one made by virtue of subsection (1)(g) of that section.

 

 

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

    52

 

 104   Section 102: supplemental

     (1)    In this Part, “sexual offences prevention order” means an order under section

102 or 103.

     (2)    Subsections (3) to (8) apply for the purposes of section 102.

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

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

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 3.

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

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commencement of this Part.

     (5)           “Qualifying offender” means a person within subsection (6) or (7).

     (6)    A person is within this subsection if, whether before or after the

commencement of this Part, he—

           (a)           has been convicted of an offence listed in Schedule 3 (other than at

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paragraph 57) or 4,

           (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, or

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

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respect of such an offence.

     (7)           A person is within this subsection 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

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punished for it),

           (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

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

charged against him in respect of the offence, or

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

     (8)    “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 or cautioned

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as mentioned in subsection (6) or (7).

     (9)           In subsection (7), “relevant offence” means an act which—

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

and

           (b)           would have constituted an offence listed in Schedule 3 (other than at

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paragraph 57) or 4 if it had been done in any part of the United

Kingdom.

     (10)   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

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

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

    53

 

     (11)   Subject to subsection (12), on an application under section 102(5) the condition

in subsection (9)(b) (where relevant) is to be taken as met unless, not later 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,

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           (b)           showing his grounds for that opinion, and

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

     (12)   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

(11).

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 105   SOPOs: effect

     (1)    A sexual offences prevention order—

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

and

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

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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.

     (3)    Where—

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           (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

from time to time) has effect,

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            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   SOPOs: 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;

 

 

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

    54

 

           (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

intending to come to, his police area;

           (d)           where the order was made on an application under section 102(5), the

chief officer of police who made the application.

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

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

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

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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 sexual offences prevention order, that the court considers

appropriate.

     (5)    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 the

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

the defendant (and any renewed or varied order may contain only such

prohibitions as are necessary for this purpose).

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

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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

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

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defendant resides.

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

           (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’

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

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

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

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

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

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),

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

made in England and Wales), and

           (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.

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