Police, Crime, Sentencing and Courts Bill (HL Bill 72)

continued    Part 3 continued    

(11)A foreign travel order as renewed or varied under this section may
contain only such prohibitions as are necessary for the purpose
mentioned in subsection (10).

(12)The court must not discharge a sexual harm prevention order or a
5sexual offences prevention order before the end of 5 years beginning
with the day on which the order was made without the consent of the
defendant and the chief constable.

(13)The defendant may appeal against the making of an order under this
section, or the refusal to make such an order, as if it were a decision
10constituting final judgment in civil proceedings within the meaning
of the Courts Reform (Scotland) Act 2014 (asp 18).

(14)In this section—

• “the appropriate sheriff” means—

  (a)

  in any case, a sheriff in whose sheriffdom the
  15defendant resides, or

  (b)

  in a case where the application is made by the chief
  constable—

  (i)

  a sheriff in whose sheriffdom the defendant is
  believed by the chief constable to be, or

  (ii)

  20a sheriff to whose sheriffdom the defendant is
  believed by the chief constable to be intending
  to come;

• “the chief constable” means the chief constable of the Police
  Service of Scotland;

• 25“child” means a person under 18;

• “serious sexual harm”, in relation to the renewal or variation of
  a sexual offences prevention order, means serious physical or
  psychological harm caused by the defendant committing one
  or more of the offences listed in Schedule 3;

• 30“serious sexual harm”, in relation to the renewal or variation of
  a foreign travel order, means serious physical or
  psychological harm caused by the defendant doing, outside
  the United Kingdom, anything which would constitute an
  offence listed in Schedule 3 if done in any part of the United
  35Kingdom;

• “sexual harm” and “vulnerable adult”, in relation to the renewal
  or variation of a sexual harm prevention order, have the
  meanings given by section 103B(1).

136ZF  Variation, renewal or discharge of sexual risk order etc by court in
40Scotland

(1)This section applies where a relevant order has been made in respect
of a person who now—

(a)is residing in Scotland, or

(b)is in or is intending to come to Scotland.

(2)45In this section “relevant order” means—

(a)a sexual risk order, or

(b)a risk of sexual harm order.

(3)An application may be made to the appropriate sheriff in Scotland—

(a)by the defendant, or

(b)by the chief constable,

for an order varying, renewing or discharging the relevant order.

(4)Subject to subsections (5) to (10), on the application the court, after
5hearing the person making the application and the other person
mentioned in subsection (3) (if that person wishes to be heard), may
make any order varying, renewing or discharging the relevant order
that the appropriate sheriff considers appropriate.

(5)In determining the application the court must have regard to—

(a)10the time for which the defendant is likely to remain in
Scotland, and

(b)whether—

(i)in the case of a sexual risk order, the defendant is
likely to return to, or to visit, England and Wales, or

(ii)15in the case of a risk of sexual harm order, the
defendant is likely to return to, or to visit, Northern
Ireland.

(6)A sexual risk order may be renewed, or varied under this section so
as to impose additional prohibitions or requirements on the
20defendant, only if it is necessary to do so for the purpose of—

(a)protecting the public in Scotland, or any particular members
of the public in Scotland, from harm from the defendant, or

(b)protecting children or vulnerable adults generally, or any
particular children or vulnerable adults, from harm from the
25defendant outside the United Kingdom.

(7)A sexual risk order as renewed or varied under this section may
contain only such prohibitions and requirements as are necessary for
the purpose of—

(a)protecting the public or any particular members of the public
30from harm from the defendant, or

(b)protecting children or vulnerable adults generally, or any
particular children or vulnerable adults, from harm from the
defendant outside the United Kingdom.

(8)A risk of sexual harm order may be renewed, or varied under this
35section 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 physical or psychological harm from the
defendant doing acts within section 123(3).

(9)A risk of sexual harm order as renewed or varied under this section
40may contain only such prohibitions as are necessary for the purpose
mentioned in subsection (8).

(10)The court must not discharge a relevant order before the end of 2
years beginning with the day on which the order was made without
the consent of the defendant and the chief constable.

(11)45The defendant may appeal against the making of an order under this
section, or the refusal to make such an order, as if it were a decision
constituting final judgment in civil proceedings within the meaning
of the Courts Reform (Scotland) Act 2014 (asp 18).

(12)In this section—

• “the appropriate sheriff” means—

  (a)

  in any case, a sheriff in whose sheriffdom the
  defendant resides, or

  (b)

  5in a case where the application is made by the chief
  constable—

  (i)

  a sheriff in whose sheriffdom the defendant is
  believed by the chief constable to be, or

  (ii)

  a sheriff to whose sheriffdom the defendant is
  10believed by the chief constable to be intending
  to come;

• “the chief constable” means the chief constable of the Police
  Service of Scotland;

• “child”—

  (a)

  15in relation to the renewal or variation of a sexual risk
  order, means a person under 18;

  (b)

  in relation to the renewal or variation of a risk of
  sexual harm order, means a person under 16;

• “harm” and “vulnerable adult”, in relation to the renewal or
  20variation of a sexual risk order, have the meanings given by
  section 122B(1).”

Amendments of the Sentencing Code

5After section 351 of the Sentencing Code insert—

“351A  Variation, renewal or discharge of sexual harm prevention order by
25court in Scotland

(1)This section applies where a sexual harm prevention order has been
made in respect of an offender who—

(a)is residing in Scotland, or

(b)is in or intends to come to Scotland.

(2)30An application may be made to the appropriate sheriff in Scotland—

(a)by the offender, or

(b)by the chief constable,

for an order varying, renewing or discharging the sexual harm
prevention order.

(3)35Subsection (4) applies where an application under subsection (2) is
made.

(4)After hearing—

(a)the person making the application, and

(b)the other person mentioned in subsection (2) (if that person
40wishes to be heard),

the sheriff may make any order varying, renewing or discharging the
sexual harm prevention order that the sheriff considers appropriate.

This is subject to subsections (5) to (8).

(5)In determining the application the court must have regard to—

(a)45the time for which the defendant is likely to remain in
Scotland, and

(b)whether the defendant is likely to return to, or to visit,
England and Wales.

(6)An order may be renewed, or varied so as to impose additional
prohibitions or requirements on the offender, only if it is necessary
5to do so for the purpose of—

(a)protecting the public in Scotland, or any particular members
of the public in Scotland, from sexual harm from the offender,
or

(b)protecting children or vulnerable adults generally, or any
10particular children or vulnerable adults, from sexual harm
from the offender outside the United Kingdom.

(7)An order as renewed or varied under this section may contain only
such prohibitions and requirements as are necessary for the purpose
of—

(a)15protecting the public or any particular members of the public
from sexual harm from the offender, or

(b)protecting children or vulnerable adults generally, or any
particular children or vulnerable adults, from sexual harm
from the offender outside the United Kingdom.

(8)20The court must not discharge an order before the end of the period
of 5 years beginning with the day on which the order was made
without the consent of the defendant and the chief constable.

(9)The offender may appeal against the making of an order under this
section, or the refusal to make such an order, as if it were a decision
25constituting final judgment in civil proceedings within the meaning
of the Courts Reform (Scotland) Act 2014 (asp 18).

(10)In this section—

• “the appropriate sheriff” means—

  (a)

  in any case, a sheriff in whose sheriffdom the offender
  30resides, or

  (b)

  in a case where the application is made by the chief
  constable—

  (i)

  a sheriff in whose sheriffdom the offender is
  believed by the chief constable to be, or

  (ii)

  35a sheriff to whose sheriffdom the offender is
  believed by the chief constable to be intending
  to come;

• “the chief constable” means the chief constable of the Police
  Service of Scotland.”

40Part 3 Variation of order by court in England and Wales

6After section 136ZF of the Sexual Offences Act 2003 (inserted by paragraph

  4) insert—

“136ZG  Variation, renewal or discharge of sexual harm prevention order
made in Scotland by court in England and Wales

(1)This section applies where a relevant Scottish order has been made
5in respect of a person (“the defendant”) who now—

(a)is residing in England and Wales, or

(b)is in or is intending to come to England and Wales.

(2)In this section “relevant Scottish order” means a sexual harm
prevention order made under section 11 or 12 of the Abusive
10Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22).

(3)A person within subsection (4) may by complaint to the appropriate
court apply for an order varying, renewing or discharging the
relevant order.

(4)Those persons are—

(a)15the 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.

(5)20If a list has been published under section 147 of the Police, Crime,
Sentencing and Courts Act 2021 (list of countries where children are
at high risk of sexual abuse or sexual exploitation) and has not been
withdrawn, a person mentioned in subsection (4)(b) or (c) must have
regard to the list in considering—

(a)25whether to apply for an order varying or renewing the
relevant Scottish order for the purpose of protecting children
generally, or any particular children, from sexual harm from
the defendant outside the United Kingdom, and

(b)in particular, whether to apply for an order imposing,
30varying or renewing a prohibition on foreign travel for that
purpose.

(6)Subject to subsections (7) to (14), on an application under this section
the court, after hearing the person making the application and (if
they wish to be heard) the other persons mentioned in subsection (4),
35may make any order varying, renewing or discharging the relevant
Scottish order that the court considers appropriate.

(7)In determining the application the court must have regard to—

(a)the time for which the defendant is likely to remain in
England and Wales, and

(b)40whether the defendant is likely to return to, or to visit,
Scotland.

(8)A relevant Scottish order may be renewed, or varied under this
section so as to impose additional prohibitions or requirements on
the defendant, only if it is necessary to do so for the purpose of—

(a)45protecting the public in England and Wales, or any particular
members of the public in England and Wales, 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.

(9)A relevant Scottish order as renewed or varied under this section
5may contain only such prohibitions and requirements as are
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
10particular children or vulnerable adults, from sexual harm
from the defendant outside the United Kingdom.

(10)If a list has been published under section 147 of the Police, Crime,
Sentencing and Courts Act 2021 and has not been withdrawn, the
court must have regard to the list in considering—

(a)15whether any order varying or renewing the relevant Scottish
order is necessary for the purpose of protecting children
generally, or any particular children, from sexual harm from
the defendant outside the United Kingdom, and

(b)in particular, whether an order imposing, varying or
20renewing a prohibition on foreign travel is necessary for that
purpose.

(11)A relevant Scottish order may be renewed or varied under this
section so as to require the defendant to submit to electronic
monitoring of the defendant’s compliance with the prohibitions and
25requirements imposed by the order.

(12)Section 103FA (electronic monitoring requirements) applies in
relation to—

(a)the variation under this section of a relevant Scottish order to
require the defendant to submit to electronic monitoring of
30the defendant’s compliance with the prohibitions and
requirements imposed by the order, or

(b)the renewal of an order to continue such a requirement,

as it applies in relation to the making of a sexual harm prevention
order, subject to subsection (13).

(13)35In its application to the variation or renewal of a relevant Scottish
order, section 103FA has effect as if—

(a)the reference in subsection (4)(b) to a case where it is
proposed to include in the order a requirement or provision
mentioned in sub-paragraph (i) or (ii) included a case where
40the order already includes such a requirement or provision,

(b)the reference in subsection (4)(b) to the local justice area in
which the place or area proposed to be specified is situated
included the local justice area in which the place or area
already specified is situated, and

(c)45the reference in subsection (9) to section 103E were to this
section.

(14)The court must not discharge a relevant Scottish order, or vary such
an order so as to remove a prohibition or requirement, unless the

order or, as the case may be, the prohibition or requirement is no
longer necessary for the purpose of—

(a)protecting the public, or any particular members of the
public, from sexual harm from the defendant, or

(b)5protecting children or vulnerable adults generally, or any
particular children or vulnerable adults, from sexual harm
from the defendant outside the United Kingdom.

(15)In this section—

• “adult magistrates’ court” means a magistrates’ court that is not
  10a youth court;

• “the appropriate court” means—

  (a)

  where the defendant is aged 18 or over, an adult
  magistrates’ court for the area in which the defendant
  resides or, where the application is made by a chief
  15officer of police, any adult magistrates’ court acting
  for a local justice area that includes any part of the
  chief officer’s police area;

  (b)

  where the defendant is under the age of 18, a youth
  court for the area in which the defendant resides or,
  20where the application is made by a chief officer of
  police, any youth court acting for a local justice area
  that includes any part of the chief officer’s police area;

• “child” means a person under 18;

• “prohibition on foreign travel” includes a prohibition on foreign
  25travel within the meaning of Chapter 3 of Part 2 of the
  Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (see
  sections 17 and 25 of that Act);

• “sexual harm” and “vulnerable adult” have the same meanings
  as in Chapter 3 of Part 2 of the Abusive Behaviour and Sexual
  30Harm (Scotland) Act 2016 (see sections 10 and 25 of that Act).

136ZH  Variation, renewal or discharge of sexual offences prevention order
or foreign travel order by court in England and Wales

(1)This section applies where a relevant order has been made in respect
of a person who now—

(a)35is residing in England and Wales, or

(b)is in or is intending to come to England and Wales.

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

(a)a sexual offences prevention order, or

(b)a foreign travel order.

(3)40A person within subsection (4) may by complaint to the appropriate
court apply for an order varying, renewing or discharging the
relevant order.

(4)Those persons are—

(a)the defendant;

(b)45the 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.

(5)If—

(a)this section applies in relation to a person because that person
is subject to a foreign travel order, and

(b)a list has been published under section 147 of the Police,
5Crime, Sentencing and Courts Act 2021 (list of countries
where children are at high risk of sexual abuse or sexual
exploitation) and has not been withdrawn,

a person mentioned in subsection (4)(b) or (c) must have regard to
the list in considering whether to apply for an order varying or
10renewing the foreign travel order.

(6)Subject to subsections (7) to (16), on an application under this section
the court, after hearing the person making the application and (if
they wish to be heard) the other persons mentioned in subsection (4),
may make any order varying, renewing or discharging the relevant
15order that the court considers appropriate.

(7)In determining the application the court must have regard to—

(a)the time for which the defendant is likely to remain in
England and Wales, and

(b)whether the defendant is likely to return to, or to visit,
20Northern Ireland.

(8)A sexual offences prevention order may be renewed, or varied under
this section so as to impose additional prohibitions or requirements
on the defendant, only if it is necessary to do so for the purpose of
protecting the public in England and Wales, or any particular
25members of the public in England and Wales, from serious sexual
harm from the defendant.

(9)A sexual offences prevention order as renewed or varied under this
section may contain only such prohibitions and requirements as are
necessary for the purpose of protecting the public or any particular
30members of the public from serious sexual harm from the defendant.

(10)A sexual offences prevention order may be renewed or varied under
this section so as to require the defendant to submit to electronic
monitoring of the defendant’s compliance with the prohibitions and
requirements imposed by the order.

(11)35Section 103FA (electronic monitoring requirements) applies in
relation to—

(a)the variation under this section of a sexual offences
prevention order to require the defendant to submit to
electronic monitoring of the defendant’s compliance with the
40prohibitions and requirements imposed by the order, or

(b)the renewal of an order to continue such a requirement,

as it applies in relation to the making of a sexual harm prevention
order, subject to subsection (12).

(12)In its application to the variation or renewal of a sexual offences
45prevention order, section 103FA has effect as if—

(a)the reference in subsection (4)(b) to a case where it is
proposed to include in the order a requirement or provision
mentioned in sub-paragraph (i) or (ii) included a case where
the order already includes such a requirement or provision,

(b)the reference in subsection (4)(b) to the local justice area in
which the place or area proposed to be specified is situated
included the local justice area in which the place or area
already specified is situated, and

(c)5the reference in subsection (9) to section 103E were to this
section.

(13)The court must not discharge a sexual offences prevention 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)10where the application under this section 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 defendant resides.

(14)A foreign travel order may be renewed, or varied under this section
15so 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.

(15)A foreign travel order as renewed or varied under this section may
20contain only such prohibitions as are necessary for the purpose
mentioned in subsection (14).

(16)If a list has been published under section 147 of the Police, Crime,
Sentencing and Courts Act 2021 and has not been withdrawn, the
court must have regard to the list in considering whether to renew or
25vary a foreign travel order under this section.

(17)In this section—

• “adult magistrates’ court” means a magistrates’ court that is not
  a youth court;

• “the appropriate court” means—

  (a)

  30where the defendant is aged 18 or over, an adult
  magistrates’ court for the area in which the defendant
  resides or, where the application is made by a chief
  officer of police, any adult magistrates’ court acting
  for a local justice area that includes any part of the
  35chief officer’s police area;

  (b)

  where the defendant is under the age of 18, 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 acting for a local justice area
  40that includes any part of the chief officer’s police area;

• “child” means a person under 18;

• “serious sexual harm”—

  (a)

  in relation to the renewal or variation of a sexual
  offences prevention order, means serious physical or
  45psychological harm caused by the defendant
  committing one or more of the offences listed in
  Schedule 3;

  (b)

  in relation to the renewal or variation of a foreign
  travel order, means serious physical or psychological
  50harm caused by the defendant doing, outside the

  Police, Crime, Sentencing and Courts BillPage 279

   

  United Kingdom, anything which would constitute
  an offence listed in Schedule 3 if done in any part of
  the United Kingdom.

136ZI  Variation, renewal or discharge of sexual risk order made in Scotland
5by court in England and Wales

(1)This section applies where a relevant Scottish order has been made
in respect of a person (“the defendant”) who now—

(a)is residing in England and Wales, or

(b)is in or is intending to come to England and Wales.

(2)10In this section “relevant Scottish order” means a sexual risk order
made under section 27 of the Abusive Behaviour and Sexual Harm
(Scotland) Act 2016 (asp 22).

(3)A person within subsection (4) may by complaint to the appropriate
court apply for an order varying, renewing or discharging the
15relevant Scottish order.

(4)Those persons are—

(a)the defendant;

(b) the chief officer of police for the area in which the defendant
resides;

(c)20a chief officer of police who believes that the defendant is in,
or is intending to come to, that officer‘s police area.

(5)If a list has been published under section 147 of the Police, Crime,
Sentencing and Courts Act 2021 (list of countries where children are
at high risk of sexual abuse or sexual exploitation) and has not been
25withdrawn, a person mentioned in subsection (4)(b) or (c) must have
regard to the list in considering—

(a)whether to apply for an order varying or renewing the
relevant Scottish order for the purpose of protecting children
generally, or any particular children, from sexual harm from
30the defendant outside the United Kingdom, and

(b)in particular, whether to apply for an order imposing,
varying or renewing a prohibition on foreign travel for that
purpose.

(6)Subject to subsections (7) to (14), on the application the court, after
35hearing the person making the application and (if they wish to be
heard) the other persons mentioned in subsection (4), may make any
order varying, renewing or discharging the relevant Scottish order
that the court considers appropriate.

(7)In determining the application the court must have regard to—

(a)40the time for which the defendant is likely to remain in
England and Wales, and

(b)whether the defendant is likely to return to, or to visit,
Scotland.

(8)A relevant Scottish order may be renewed, or varied under this
45section so as to impose additional prohibitions or requirements on
the defendant, only if it is necessary to do so for the purpose of—