Session 2013 - 14
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Other Bills before Parliament


 
 

Report Stage Proceedings: 14 October 2013                

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Anti-social Behaviour, Crime and Policing Bill, continued

 
 

“Sexual harm prevention orders (England and Wales)

 

103A  

Sexual harm prevention orders: applications and grounds

 

(1)    

A court may make an order under this section (a “sexual harm

 

prevention order”) in respect of a person (“the defendant”) where

 

subsection (2) or (3) applies to the defendant.

 

(2)    

This subsection applies to the defendant where—

 

(a)    

the court deals with the defendant in respect of—

 

(i)    

an offence listed in Schedule 3 or 5, or

 

(ii)    

a finding that the defendant is not guilty of an offence

 

listed in Schedule 3 or 5 by reason of insanity, or

 

(iii)    

a finding that the defendant is under a disability and

 

has done the act charged against the defendant in

 

respect of an offence listed in Schedule 3 or 5,

 

    

and

 

(b)    

the court is satisfied that it is necessary to make a sexual harm

 

prevention order, for the purpose of—

 

(i)    

protecting the public or any particular members of the

 

public from sexual harm from the defendant, or

 

(ii)    

protecting children or vulnerable adults generally, or

 

any particular children or vulnerable adults, from

 

sexual harm from the defendant outside the United

 

Kingdom.

 

(3)    

This subsection applies to the defendant where—

 

(a)    

an application under subsection (4) has been made in respect

 

of the defendant and it is proved on the application that the

 

defendant is a qualifying offender, and

 

(b)    

the court is satisfied that the defendant’s behaviour since the

 

appropriate date makes it necessary to make a sexual harm

 

prevention order, for the purpose of—

 

(i)    

protecting the public or any particular members of the

 

public from sexual harm from the defendant, or

 

(ii)    

protecting children or vulnerable adults generally, or

 

any particular children or vulnerable adults, from

 

sexual harm from the defendant outside the United

 

Kingdom.

 

(4)    

A chief officer of police or the Director General of the National Crime

 

Agency (“the Director General”) may by complaint to a magistrates’

 

court apply for a sexual harm prevention order in respect of a person

 

if it appears to the chief officer or the Director General that—

 

(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.

 

(5)    

A chief officer of police may make an application under subsection (4)

 

only in respect of a person—

 

(a)    

who resides in the chief officer’s police area, or

 

(b)    

who the chief officer believes is in that area or is intending to

 

come to it.


 
 

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(6)    

An application under subsection (4) may be made to any magistrates’

 

court whose commission area includes—

 

(a)    

any part of a relevant police area, or

 

(b)    

any place where it is alleged that the person acted in a way

 

mentioned in subsection (4)(b).

 

(7)    

The Director General must as soon as practicable notify the chief

 

officer of police for a relevant police area of any application that the

 

Director has made under subsection (4).

 

(8)    

In this section “relevant police area” means—

 

(a)    

where the applicant is a chief officer of police, the officer’s

 

police area;

 

(b)    

where the applicant is the Director General—

 

(i)    

the police area where the person in question resides,

 

or

 

(ii)    

a police area which the Director General believes the

 

person is in or is intending to come to.

 

103B  

Section 103A: supplemental

 

(1)    

In section 103A

 

“appropriate date”, in relation to a qualifying offender, means the date or

 

(as the case may be) the first date on which the offender was convicted,

 

found or cautioned as mentioned in subsection (2) or (3) below;

 

“child” means a person under 18;

 

“the public” means the public in the United Kingdom;

 

“sexual harm” from a person means physical or psychological harm

 

caused—

 

(a)    

by the person committing one or more offences listed in

 

Schedule 3, or

 

(b)    

(in the context of harm outside the United Kingdom) by the

 

person doing, outside the United Kingdom, anything which

 

would constitute an offence listed in Schedule 3 if done in any

 

part of the United Kingdom;

 

“qualifying offender” means a person within subsection (2) or (3) below;

 

“vulnerable adult” means a person aged 18 or over whose ability to

 

protect himself or herself from physical or psychological harm is

 

significantly impaired through physical or mental disability or illness,

 

through old age or otherwise.

 

(2)    

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

 

commencement of this Part, the person—

 

(a)    

has been convicted of an offence listed in Schedule 3 (other

 

than at paragraph 60) or in Schedule 5,

 

(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)    

has been cautioned in respect of such an offence.

 

(3)    

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—


 
 

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Anti-social Behaviour, Crime and Policing Bill, continued

 
 

(a)    

the person has been convicted of a relevant offence (whether

 

or not the person has been 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 the person 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 the person is under a disability and

 

did the act charged against the person in respect of the offence,

 

or

 

(d)    

the person 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

 

(b)    

would have constituted an offence listed in Schedule 3 (other

 

than at paragraph 60) or in Schedule 5 if it had been done in

 

any part of the United Kingdom.

 

    

For this purpose an act punishable under the law in force in a country

 

outside the United Kingdom constitutes an offence under that law,

 

however it is described in that law.

 

(5)    

For the purposes of section 103A, acts, behaviour, convictions and

 

findings include those occurring before the commencement of this

 

Part.

 

(6)    

Subject to subsection (7), on an application under section 103A(4) the

 

condition in subsection (4)(b) above (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 the defendant’s opinion met,

 

(b)    

showing the grounds for that opinion, and

 

(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).

 

(8)    

Subsection (9) applies for the purposes of section 103A and this

 

section.

 

(9)    

In construing any reference to an offence listed in Schedule 3, any

 

condition subject to which an offence is so listed that relates—

 

(a)    

to the way in which the defendant is dealt with in respect of an

 

offence so listed or a relevant finding (as defined by section

 

132(9)), or

 

(b)    

to the age of any person,

 

    

is to be disregarded.

 

103C  

SHPOs: effect

 

(1)    

A sexual harm prevention order prohibits the defendant from doing

 

anything described in the order.

 

(2)    

Subject to section 103D(1), a prohibition contained in a sexual harm

 

prevention order has effect—

 

(a)    

for a fixed period, specified in the order, of at least 5 years, or


 
 

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(b)    

until further order.

 

(3)    

A sexual harm prevention order—

 

(a)    

may specify that some of its prohibitions have effect until

 

further order and some for a fixed period;

 

(b)    

may specify different periods for different prohibitions.

 

(4)    

The only prohibitions that may be included in a sexual harm

 

prevention order are those necessary for the purpose of—

 

(a)    

protecting the public or any particular members of the public

 

from sexual harm from the defendant, or

 

(b)    

protecting children or vulnerable adults generally, or any

 

particular children or vulnerable adults, from sexual harm

 

from the defendant outside the United Kingdom.

 

(5)    

In subsection (4) “the public”, “sexual harm”, “child” and “vulnerable

 

adult” each has the meaning given in section 103B(1).

 

(6)    

Where a court makes a sexual harm prevention order in relation to a

 

person who is already subject to such an order (whether made by that

 

court or another), the earlier order ceases to have effect.

 

103D  

SHPOs: prohibitions on foreign travel

 

(1)    

A prohibition on foreign travel contained in a sexual harm prevention

 

order must be for a fixed period of not more than 5 years.

 

(2)    

A “prohibition on foreign travel” means—

 

(a)    

a prohibition on travelling to any country outside the United

 

Kingdom named or described in the order,

 

(b)    

a prohibition on travelling to any country outside the United

 

Kingdom other than a country named or described in the

 

order, or

 

(c)    

a prohibition on travelling to any country outside the United

 

Kingdom.

 

(3)    

Subsection (1) does not prevent a prohibition on foreign travel from

 

being extended for a further period (of no more than 5 years each time)

 

under section 103E.

 

(4)    

A sexual harm prevention order that contains a prohibition within

 

subsection (2)(c) must require the defendant to surrender all of the

 

defendant’s passports at a police station specified in the order—

 

(a)    

on or before the date when the prohibition takes effect, or

 

(b)    

within a period specified in the order.

 

(5)    

Any passports surrendered must be returned as soon as reasonably

 

practicable after the person ceases to be subject to a sexual harm

 

prevention order containing a prohibition within subsection (2)(c)

 

(unless the person is subject to an equivalent prohibition under another

 

order).

 

(6)    

Subsection (5) does not apply in relation to—

 

(a)    

a passport issued by or on behalf of the authorities of a country

 

outside the United Kingdom if the passport has been returned

 

to those authorities;


 
 

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Anti-social Behaviour, Crime and Policing Bill, continued

 
 

(b)    

a passport issued by or on behalf of an international

 

organisation if the passport has been returned to that

 

organisation.

 

(7)    

In this section “passport” means—

 

(a)    

a United Kingdom passport within the meaning of the

 

Immigration Act 1971;

 

(b)    

a passport issued by or on behalf of the authorities of a country

 

outside the United Kingdom, or by or on behalf of an

 

international organisation;

 

(c)    

a document that can be used (in some or all circumstances)

 

instead of a passport.

 

103E  

SHPOs: variations, renewals and discharges

 

(1)    

A person within subsection (2) may apply to the appropriate court for

 

an order varying, renewing or discharging a sexual harm prevention

 

order.

 

(2)    

The persons are—

 

(a)    

the defendant;

 

(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, that officer’s police area;

 

(d)    

where the order was made on an application by a chief officer

 

of police under section 103A(4), that officer.

 

(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 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 harm prevention

 

order, that the court considers appropriate.

 

(5)    

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—

 

(a)    

protecting the public or any particular members of the public

 

from sexual harm from the defendant, or

 

(b)    

protecting children or vulnerable adults generally, or any

 

particular children or vulnerable adults, from sexual harm

 

from the defendant outside the United Kingdom.

 

    

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 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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Anti-social Behaviour, Crime and Policing Bill, continued

 
 

(b)    

in any other case, the chief officer of police for the area in

 

which the defendant resides.

 

(7)    

Subsection (6) does not apply to an order containing a prohibition on

 

foreign travel and no other prohibitions.

 

(8)    

In this section “the appropriate court” means—

 

(a)    

where the Crown Court or the Court of Appeal made the

 

sexual harm prevention order, the Crown Court;

 

(b)    

where a magistrates’ court made the order, that court, a

 

magistrates’ 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 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.

 

103F  

Interim SHPOs

 

(1)    

This section applies where an application under section 103A(4) (“the

 

main application”) has not been determined.

 

(2)    

An application for an order under this section (“an interim sexual harm

 

prevention order”)—

 

(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.

 

(3)    

The court may, if it considers it just to do so, make an interim sexual

 

harm prevention 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;

 

(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 sexual harm prevention order for the order to be

 

varied, renewed or discharged.

 

103G  

SHPOs and interim SHPOs: notification requirements

 

(1)    

Where—

 

(a)    

a sexual harm prevention 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,

 

    

the defendant remains subject to the notification requirements.


 
 

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Anti-social Behaviour, Crime and Policing Bill, continued

 
 

(2)    

Where a sexual harm prevention 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 (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 (3).

 

(3)    

The “relevant date” is the date of service of the order.

 

(4)    

Subsections (1) to (3) apply to an interim sexual harm prevention order

 

as if references to a sexual harm prevention order were references to

 

an interim sexual harm prevention order, and with the omission of “(as

 

renewed from time to time)” in both places.

 

(5)    

Where—

 

(a)    

a sexual harm prevention order is in effect in relation to a

 

relevant sex offender (within the meaning of section 88A),

 

and

 

(b)    

by virtue of section 88F or 88G the relevant sex offender

 

ceases to be subject to the notification requirements of this

 

Part,

 

    

the sexual harm prevention order ceases to have effect.

 

(6)    

On an application for a sexual harm prevention order made by a chief

 

officer of police, the court must make a notification order in respect of

 

the defendant (either in addition to or instead of a sexual harm

 

prevention order) if—

 

(a)    

the applicant invites the court to do so, and

 

(b)    

it is proved that the conditions in section 97(2) to (4) are met.

 

(7)    

On an application for an interim sexual harm prevention order made

 

by a chief officer of police, the court may, if it considers it just to do

 

so, make an interim notification order (either in addition to or instead

 

of an interim sexual harm prevention order).

 

103H  

SHPOs and interim SHPOs: appeals

 

(1)    

A defendant may appeal against the making of a sexual harm

 

prevention order—

 

(a)    

where the order was made by virtue of section 103A(2)(a)(i),

 

as if the order were a sentence passed on the defendant for the

 

offence;

 

(b)    

where the order was made by virtue of section 103A(2)(a)(ii)

 

or (iii), as if the defendant had been convicted of the offence

 

and the order were a sentence passed on the defendant for that

 

offence;

 

(c)    

where the order was made on an application under section

 

103A(4), to the Crown Court.

 

(2)    

A defendant may appeal to the Crown Court against the making of an

 

interim sexual harm prevention order.

 

(3)    

A defendant may appeal against the making of an order under section

 

103E, or the refusal to make such an order


 
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