Police, Crime, Sentencing and Courts Bill (HL Bill 95)

Part 10 continued    

(5)A sexual harm prevention order or interim sexual harm prevention
order that includes an electronic monitoring requirement must specify
the person who is to be responsible for the monitoring.

(6)The person specified under subsection (5) (“the responsible person”)
5must be of a description specified in regulations made by the Secretary
of State.

(7)Where a sexual harm prevention order or interim sexual harm
prevention order imposes an electronic monitoring requirement on the
defendant, the defendant must (among other things)—

(a)10submit, as required from time to time by the responsible person,
to—

(i)being fitted with, or the installation of, any necessary
apparatus, and

(ii)the inspection or repair of any apparatus fitted or
15installed for the purposes of the monitoring,

(b)not interfere with, or with the working of, any apparatus fitted
or installed for the purposes of the monitoring, and

(c)take any steps required by the responsible person for the
purpose of keeping in working order any apparatus fitted or
20installed for the purpose of the monitoring.

These obligations have effect as requirements of the sexual harm
prevention order or interim sexual harm prevention order under which
the electronic monitoring requirement is imposed.

(8)A sexual harm prevention order or an interim sexual harm prevention
25order may not provide for an electronic monitoring requirement to
have effect for more than 12 months.

(9)Subsection (8) does not prevent an electronic monitoring requirement
from being extended for a further period (of no more than 12 months
each time) under section 103E.

103FB 30 Data from electronic monitoring: code of practice

(1)The Secretary of State must issue a code of practice relating to the
processing of data gathered in the course of electronic monitoring of
defendants under electronic monitoring requirements imposed by—

(a)sexual harm prevention orders,

(b)35relevant Scottish orders within the meaning of section 136ZG
that have been renewed or varied as mentioned in subsection
(11) of that section (variation etc by court in England and Wales
to impose electronic monitoring requirement), and

(c)sexual offences prevention orders that have been renewed or
40varied as mentioned in section 136ZH(10) (variation etc by
court in England and Wales to impose electronic monitoring
requirement).

(2)A failure to observe a code issued under this section does not of itself
make a person liable to any criminal or civil proceedings.”

(11)45In section 122A (sexual risk orders: applications, grounds and effect)—

(a)after subsection (8) insert—

“(8A)Subsection (8) is subject to section 122C(1) (duration of
prohibitions on foreign travel) and section 122EA(8) (duration
of electronic monitoring requirements).”, and

(b)5after subsection (9A) (as inserted by section 174 of this Act) insert—

“(9B)A sexual risk order may require the defendant to submit to
electronic monitoring of the defendant’s compliance with the
prohibitions and requirements imposed by the order (see
section 122EA for further provision about such a requirement).”

(12)10In section 122D (sexual risk orders: variations, renewals and discharges) after
subsection (4B) (inserted by section 171 of this Act) insert—

“(4C)Section 122EA (electronic monitoring requirements) applies in relation
to—

(a)the variation of an order to require the defendant to submit to
15electronic monitoring of the 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 risk order, subject to
subsection (4D).

(4D)20In its application to the variation or renewal of an order, section
122EA(4)(b) has effect as if—

(a)the reference 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
25a requirement or provision, and

(b)the reference 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.”

(13)In section 122E (interim sexual risk orders)—

(a)30after subsection (3A) (inserted by section 171 of this Act) insert—

“(3B)An interim sexual risk order may require the defendant to
submit to electronic monitoring of the defendant’s compliance
with the prohibitions and requirements imposed by the order
(see section 122EA for further provision about such a
35requirement).”, and

(b)in subsection (4) for “Such an order” substitute “An interim sexual risk
order”.

(14)After section 122E insert—

“122EA Sexual risk orders and interim sexual risk orders: electronic
40monitoring requirements

(1)Subsections (2) and (3) apply for the purpose of determining whether a
court may impose, under section 122A(9B) or section 122E(3B), an
electronic monitoring requirement on the defendant in a sexual risk
order or interim sexual risk order.

(2)45If there is a person (other than the defendant) without whose co-
operation it would be impracticable to secure the monitoring in

question, the requirement may not be imposed without that person’s
consent.

(3)The court may impose the requirement only if—

(a)it has been notified by the Secretary of State that electronic
5monitoring arrangements are available in the relevant area, and

(b)it is satisfied that the necessary provision can be made under the
arrangements currently available.

(4)In subsection (3)(a) “the relevant area” means—

(a)the local justice area in which it appears to the court that the
10defendant resides or will reside, and

(b)in a case where it is proposed to include in the order—

(i)a requirement that the defendant must remain, for
specified periods, at a specified place, or

(ii)a provision prohibiting the defendant from entering a
15specified place or area,

the local justice area in which the place or area proposed to be
specified is situated.

“Specified” means specified in the sexual risk order or interim sexual
risk order under which the electronic monitoring requirement is
20imposed.

(5)A sexual risk order or interim sexual risk order that includes an
electronic monitoring requirement must specify the person who is to be
responsible for the monitoring.

(6)The person specified under subsection (5) (“the responsible person”)
25must be of a description specified in regulations made by the Secretary
of State.

(7)Where a sexual risk order or interim sexual risk order imposes an
electronic monitoring requirement on the defendant, the defendant
must (among other things)—

(a)30submit, as required from time to time by the responsible person,
to—

(i)being fitted with, or the installation of, any necessary
apparatus, and

(ii)the inspection or repair of any apparatus fitted or
35installed for the purposes of the monitoring,

(b)not interfere with, or with the working of, any apparatus fitted
or installed for the purposes of the monitoring, and

(c)take any steps required by the responsible person for the
purpose of keeping in working order any apparatus fitted or
40installed for the purpose of the monitoring.

These obligations have effect as requirements of the sexual risk order or
interim sexual risk order under which the electronic monitoring
requirement is imposed.

(8)A sexual risk order or an interim sexual risk order may not provide for
45an electronic monitoring requirement to have effect for more than 12
months.

(9)Subsection (8) does not prevent an electronic monitoring requirement
from being extended for a further period (of no more than 12 months
each time) under section 122D.

122EB  Data from electronic monitoring: code of practice

(1)5The Secretary of State must issue a code of practice relating to the
processing of data gathered in the course of electronic monitoring of
defendants under electronic monitoring requirements imposed by—

(a)sexual risk orders,

(b)relevant Scottish orders within the meaning of section 136ZI
10that have been renewed or varied as mentioned in subsection
(11) of that section (variation etc by court in England and Wales
to impose electronic monitoring requirement), and

(c)risk of sexual harm orders that have been renewed or varied as
mentioned in section 136ZJ(7) (variation etc by court in England
15and Wales to impose electronic monitoring requirement).

(2)A failure to observe a code issued under this section does not of itself
make a person liable to any criminal or civil proceedings.”

(15)In section 136ZA, after subsection (2) insert—

“(3)A requirement that is imposed by a relevant order and that relates to
20the electronic monitoring of a person’s compliance with the
prohibitions or requirements imposed by the order is to be treated for
the purposes of subsection (2) as a requirement that is expressly
confined to a particular locality.”

(16)In section 138(3), after “containing” insert “only regulations under section
25103FA(6) or section 122EA(6) or”.

177 Positive requirements and electronic monitoring requirements: service courts

In section 137(3) of the Sexual Offences Act 2003 (service courts: sexual harm
prevention orders)—

(a)in paragraph (a)—

(i)30after “103A(3)” insert “and (4)”, and

(ii)for the words from “and 103J” to “Sentencing Code” substitute
“, 103FA(3)(a), (4) and (6) and 103J of this Act, and sections
348A(3)(a), (4) and (6) and 355 to 357 of the Sentencing Code”,

in paragraph (b), in the words before sub-paragraph (i)—

(i)35for “103A(1) and (2)” substitute “103A(1), (2) and (3A), and

(ii)for the words from “and 103G” to “Sentencing Code” substitute
“, 103FA(1), (2), (3)(b) and (5) to (9), 103FB and 103G to 103I of
this Act, and sections 343 to 348, 348A(1), (2), (3)(b) and (5) to (9),
348B to 354 and 358 of the Sentencing Code”,

(c)40in paragraph (b)(i), after “paragraphs” insert “(ba), (bb)”,

(d)after paragraph (b) insert—

“(ba)if section 103CA applies to the defendant at a time when
the defendant is a person subject to service law or a
civilian subject to service discipline, the reference in
45section 103CA(4)(c) (requirements included in order:
report on compliance) to the appropriate chief officer of
police is to be read as a reference to a Provost Marshal;

(bb)if section 347A applies to the defendant at a time when
the defendant is a person subject to service law or a
civilian subject to service discipline, the reference in
section 347A(4)(c) of the Sentencing Code (requirements
5included in order: report on compliance) to the
appropriate chief office of police is to be read as a
reference to a Provost Marshal;”,

(e)in paragraph (c), for “Provost Martial”, in both places it occurs,
substitute “Provost Marshal”, and

(f)10in paragraph (c), after sub-paragraph (i) insert—

“(ia)the reference in section 103E(2A) to a person
mentioned in subsection (2)(b) to (d) is to be read
as a reference to a Provost Marshal;

(ib)the reference in section 350(3A) of the Sentencing
15Code to a person mentioned in subsection (2)(b)
or (c) is to be read as a reference to a Provost
Marshal;”.

Orders made in different parts of the United Kingdom

178 Enforcement of requirements of orders made in Scotland or Northern Ireland

(1)20The Sexual Offences Act 2003 is amended as follows.

(2)In section 103I (offence: breach of SHPO or interim SHPO etc), after subsection
(1) insert—

“(1A)A person who, without reasonable excuse, fails to do something that
the person is required to do by a sexual offences prevention order or an
25interim sexual offences prevention order commits an offence.

(1B)A person who, without reasonable excuse—

(a)does anything that the person is prohibited from doing by a
relevant Scottish order, or

(b)fails to do something that the person is required to do by a
30relevant Scottish order,

commits an offence.

(1C)In subsection (1B) “relevant Scottish order” means—

(a)a sexual harm prevention order made under section 11 or 12 of
the Abusive Behaviour and Sexual Harm (Scotland) Act 2016
35(asp 22), or

(b)an interim sexual harm prevention order made under section 21
of that Act.”

(3)In section 113 (offence: breach of SOPO or interim SOPO etc), after subsection
(1ZA) insert—

“(1ZB)40A person commits an offence if, without reasonable excuse, the
person—

(a)contravenes a prohibition imposed by a relevant Scottish order
other than a prohibition on foreign travel, or

(b)fails to comply with a requirement imposed by a relevant
45Scottish order.

(1ZC)In subsection (1ZB)—

• “prohibition on foreign travel” has the meaning given by section
  17(2) of the Abusive Behaviour and Sexual Harm (Scotland) Act
  2016 (asp 22);

• 5“relevant Scottish order” means—

  (a)

  a sexual harm prevention order made under section 11
  or 12 of the Abusive Behaviour and Sexual Harm
  (Scotland) Act 2016, or

  (b)

  an interim sexual harm prevention order made under
  10section 21 of that Act.”

(4)In section 122(1) (offence: breach of foreign travel order)—

(a)omit the “or” at the end of paragraph (a), and

(b)at the end of paragraph (b) insert “, or

(c)he contravenes a prohibition on foreign travel imposed
15by a sexual harm prevention order made under section
11 or 12 of the Abusive Behaviour and Sexual Harm
(Scotland) Act 2016 (asp 22).”

(5)In section 122H (offence: breach of sexual risk order or interim sexual risk order
etc)—

(a)20in subsection (1) omit paragraphs (e) and (f), and

(b)after subsection (1) insert—

“(1A)A person who, without reasonable excuse, does anything that
the person is required to do by a risk of sexual harm order that
has been renewed or varied as mentioned in section 136ZJ(7)
25commits an offence.

(1B)A person who, without reasonable excuse—

(a)does anything that the person is prohibited from doing
by a relevant Scottish order, or

(b)fails to do something that the person is required to do by
30a relevant Scottish order,

commits an offence.

(1C)In subsection (1B) “relevant Scottish order” means—

(a)a sexual risk order made under section 27 of the Abusive
Behaviour and Sexual Harm (Scotland) Act 2016 (asp
3522), or

(b)an interim sexual risk order made under section 31 of
that Act.”

(6)In section 128 (offence: breach of risk of sexual harm order or interim risk of
sexual harm order etc)—

(a)40in subsection (1) omit paragraphs (e) and (f), and

(b)after subsection (1A) (inserted by section 175) insert—

“(1B)A person who, without reasonable excuse—

(a)does anything that the person is prohibited from doing
by a relevant Scottish order, or

(b)45fails to do something that the person is required to do by
a relevant Scottish order,

commits an offence.

(1C)In subsection (1B) “relevant Scottish order” means—

(a)a sexual risk order made under section 27 of the Abusive
Behaviour and Sexual Harm (Scotland) Act 2016 (asp
22), or

(b)5an interim sexual risk order made under section 31 of
that Act.”

(7)In section 136ZA (application of orders throughout the United Kingdom) in
subsection (1)—

(a)after paragraph (i) insert—

“(ia)10a sexual harm prevention order made under section 11
or 12 of the Abusive Behaviour and Sexual Harm
(Scotland) Act 2016 (asp 22);

(ib)an interim sexual harm prevention order made under
section 21 of that Act;

(ic)15a sexual risk order made under section 27 of that Act;

(id)an interim sexual risk order made under section 31 of
that Act.”, and

(b)omit paragraphs (j) and (k).

179 Effect of conviction for breach of Scottish order etc

(1)20In section 122I of the Sexual Offences Act 2003 (effect of conviction etc of an
offence under section 122H etc)—

(a)in subsection (2), omit paragraph (b),

(b)after subsection (2) insert—

“(2A)This section also applies to a person (“the defendant”) who—

(a)25is convicted of an offence mentioned in subsection (2B);

(b)is acquitted of such an offence by reason of the special
defence set out in section 51A of the Criminal Procedure
(Scotland) Act 1995, or

(c)is found, in respect of such an offence, to be unfit for trial
30under section 53F of that Act in a case where the court
determines that the defendant has done the act
constituting the offence.

(2B)Those offences are—

(a)an offence under section 34 of the Abusive Behaviour
35and Sexual Harm (Scotland) Act 2016 (asp 22) (breach of
sexual risk order or interim sexual risk order in
Scotland);

(b)an offence under section 37 of that Act (breach of
equivalent orders) in respect of a breach of an order
40made under section 122A, 122E, 123 or 126 of this Act.”

(c)in subsection (6)—

(i)in paragraph (a), for “or caution” substitute “, caution or
acquittal”,

(ii)in that paragraph, after “subsection (1)” insert “or (2A)”,

(iii)45in paragraph (b), for “or caution” substitute “, caution or
acquittal”, and

(iv)in that paragraph, after “subsection (1)” insert “or (2A)”,

(d)after subsection (6) insert—

“(6A)In subsection (6) “sexual risk order” and “interim sexual risk
order” include orders under section 27 and 31 (respectively) of
the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.”,
5and

(e)omit subsection (7).

(2)In section 129 of the Sexual Offences Act 2003 (effect of conviction etc of an
offence under section 128 etc)—

(a)in subsection (1A), omit paragraph (b),

(b)10after subsection (1A) insert—

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

(a)is convicted of an offence mentioned in subsection (1C);

(b)is acquitted of such an offence by reason of the special
defence set out in section 51A of the Criminal Procedure
15(Scotland) Act 1995, or

(c)is found, in respect of such an offence, to be unfit for trial
under section 53F of that Act in a case where the court
determines that the defendant has done the act
constituting the offence.

(1C)20Those offences are—

(a)an offence under section 34 of the Abusive Behaviour
and Sexual Harm (Scotland) Act 2016 (asp 22) (breach of
sexual risk order or interim sexual risk order in
Scotland);

(b)25an offence under section 37 of that Act (breach of
equivalent orders) in respect of a breach of an order
made under section 122A, 122E, 123 or 126 of this Act.”

(c)in subsection (5)—

(i)in paragraph (a), for “or caution” substitute “, caution or
30acquittal”,

(ii)in that paragraph, after “subsection (1)” insert “or (1B)”,

(iii)in paragraph (b), for “or caution” substitute “, caution or
acquittal”, and

(iv)in that paragraph, after “subsection (1)” insert “or (1B)”,

(d)35after subsection (5) insert—

“(5A)In subsection (5) “sexual risk order” and “interim sexual risk
order” include orders under section 27 and 31 (respectively) of
the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.”,
and

(e)40omit subsection (6).

180 Orders superseding, or superseded by, Scottish orders

(1)In section 349(2) of the Sentencing Code (making of sexual harm prevention
order: effect on other orders)—

(a)omit the “or” at the end of paragraph (a), and

(b)at the end of paragraph (b) insert “, or

(c)a sexual harm prevention order made under section 11
or 12 of the Abusive Behaviour and Sexual Harm
(Scotland) Act 2016 (asp 22),”.

(2)5Section 136ZB of the Sexual Offences Act 2003 (order ceases to have effect when
new order made) is amended as follows.

(3)In subsection (1), in the table—

(a)in the entry relating to a sexual harm prevention order, in the second
column, after “—foreign travel order” insert—

• 10“—sexual harm prevention order made under section 11 or
  12 of the Abusive Behaviour and Sexual Harm
  (Scotland) Act 2016 (asp 22).”, and

(b)in the entry relating to a sexual risk order, in the second column, after
“—foreign travel order” insert—

• 15“—sexual risk order made under section 27 of the Abusive
  Behaviour and Sexual Harm (Scotland) Act 2016.”

(4)In subsection (2)—

(a)in the words before the table—

(i) omit “or Scotland”, and

(ii)20after “England and Wales” insert “or Scotland”, and

(b)in the table—

(i)in the entry relating to a sexual offences prevention order, in the
second column, after “—in the case of a sexual harm prevention
order containing a prohibition on foreign travel, each of its
25other prohibitions” insert—

• “—sexual harm prevention order made under
  section 11 or 12 of the Abusive Behaviour and
  Sexual Harm (Scotland) Act 2016 not containing
  a prohibition on foreign travel;

• 30—in the case of a sexual harm prevention order
  made under section 11 or 12 of that Act
  containing a prohibition on foreign travel, each
  of its other prohibitions.”,

(ii)in the entry relating to a foreign travel order, in the second
35column, after “—prohibition on foreign travel contained in a
sexual harm prevention order” insert—

• “—prohibition on foreign travel contained in a
  sexual harm prevention order made under
  section 11 or 12 of the Abusive Behaviour and
  40Sexual Harm (Scotland) Act 2016.”, and

(iii)in the entry relating to a risk of sexual harm order, in the second
column, after “—in the case of a sexual risk order containing a
prohibition on foreign travel, each of its other prohibitions”
insert—

• 45“—sexual risk order made under section 27 of the
  Abusive Behaviour and Sexual Harm (Scotland)
  Act 2016 not containing a prohibition on foreign
  travel;

• —in the case of a sexual risk order made under
  section 27 of that Act containing a prohibition on
  foreign travel, each of its other prohibitions.”

(5)After subsection (2) insert—

“(2ZA)5 Where a court in Scotland makes an order listed in the first column of
the following Table in relation to a person who is already subject to an
order or prohibition listed opposite it in the second column, the earlier
order or prohibition ceases to have effect (even though it was made or
imposed by a court in England and Wales or Northern Ireland) unless
10the court orders otherwise.

(6)In subsection (2A), after “subsection (2)” insert “or subsection (2ZA)”.

(7)In subsection (3), omit paragraph (b).

181 Variation etc of order by court in another part of the United Kingdom

(1)25Schedule 17 contains amendments enabling a court in one part of the United
Kingdom to vary, renew or discharge an order made in another.

(2)In that Schedule—

(a)Part 1 enables a court in Northern Ireland to renew or discharge orders
made in England and Wales and to vary, renew or discharge orders
30made in Scotland;

(b)Part 2 enables a court in Scotland to vary, renew or discharge orders
made in England and Wales or Northern Ireland;

(c)Part 3 enables a court in England and Wales to vary, renew or discharge
orders made in Scotland or Northern Ireland.