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

continued    Part 5 continued    

Sentencing Code

23(1)The Sentencing Code is amended as follows.

(2)In section 191 (the responsible officer)—

(a)in subsection (1), omit “(2),”;

(b)5omit subsection (2).

(3)In section 192 (obligations of responsible officer), omit subsection (3).

Section 181

Schedule 17 Variation etc of order by court in another part of the United Kingdom

Part 1 10Variation etc of order made in England and Wales or Scotland by court in
Northern Ireland

Amendments of the Sexual Offences Act 2003 (c. 42)

1(1)Section 136ZC of the Sexual Offences Act 2003 (variation of sexual harm
prevention order by court in Northern Ireland) is amended as follows.

(2)15In the heading, after “Variation” insert “, renewal or discharge”.

(3)In subsection (2), in the words after paragraph (b), after “varying” insert “,
renewing or discharging”.

(4)In subsection (4)—

(a)for “subsections (5) and (6)” substitute “subsections (4A) to (6B)”, and

(b)20after “varying” insert “, renewing or discharging”.

(5)After subsection (4) insert—

“(4A)In determining the application the court must have regard to—

(a)the time for which the defendant is likely to remain in
Northern Ireland, and

(b)25whether—

(i)in the case of a sexual harm prevention order made by
a court in England and Wales, the defendant is likely
to return to, or to visit, England and Wales, or

(ii)in the case of a sexual harm prevention order made by
30a court in Scotland, the defendant is likely to return to,
or to visit, Scotland.”

(6)In subsection (5), in the words before paragraph (a)—

(a)after “An order may be” insert “renewed, or”, and

(b)for “only” substitute “, only”.

(7)35In subsection (6), in the words before paragraph (a), after “An order as”
insert “renewed or”.

(8)After subsection (6) insert—

“(6A)The court must not discharge a sexual harm prevention order made
by a court in England and Wales before the end of 5 years beginning
with the day on which the order was made without the consent of the
5defendant and the Chief Constable.

(6B)The court must not discharge a sexual harm prevention order made
by a court in Scotland, 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
10of—

(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
15from the defendant outside the United Kingdom.”

(9)In subsection (9)—

(a)in the definition of “the appropriate court”, for paragraphs (a) and (b)
substitute—

“(a)where the sexual harm prevention order was made—

(i)20in England and Wales, by the Crown Court,
otherwise than on appeal from a magistrates’
court, or by the Court of Appeal, or

(ii)in Scotland, by the High Court of Justiciary
otherwise than on appeal,

25the Crown Court (in Northern Ireland);

(b)where the defendant is aged 18 or over and the sexual
harm prevention order was made—

(i)in England and Wales, by a magistrates’ court
or by the Crown Court on appeal from a
30magistrates’ court, or

(ii)in Scotland, by the High Court of Justiciary on
appeal, by the Court of Session, by the Sheriff
Appeal Court or by a sheriff,

any court of summary jurisdiction in Northern
35Ireland;”, and

(b)at the appropriate place insert—

• ““the defendant”, in relation to a sexual harm
  prevention order made under section 11 or 12 of the
  Abusive Behaviour and Sexual Harm (Scotland) Act
  402016 (asp 22), means the person against whom the
  order has effect;”;

• ““sexual harm prevention order” includes a sexual harm
  prevention order made under section 11 or 12 of the
  Abusive Behaviour and Sexual Harm (Scotland) Act
  452016.”

2(1)Section 136ZD of the Sexual Offences Act 2003 (variation of sexual risk order
by court in Northern Ireland) is amended as follows.

(2)In the heading, after “Variation” insert “, renewal or discharge”.

(3)In subsection (2), in the words after paragraph (b), after “varying” insert “,
renewing or discharging”.

(4)In subsection (3)—

(a)for “subsections (4) and (5)” substitute “subsections (3A) to (5B)”, and

(b)5after “varying” insert “, renewing or discharging”.

(5)After subsection (3) insert—

“(3A)In determining the application the court must have regard to—

(a)the time for which the defendant is likely to remain in
Northern Ireland, and

(b)10whether—

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

(ii)in the case of a sexual risk order made by a court in
15Scotland, the defendant is likely to return to, or to
visit, Scotland.”

(6)In subsection (4), in the words before paragraph (a)—

(a)after “An order may be” insert “renewed, or”, and

(b)for “only” substitute “, only”.

(7)20In subsection (5), in the words before paragraph (a), after “An order as”
insert “renewed or”.

(8)After subsection (5) insert—

“(5A)The court must not discharge a sexual risk order made by a court in
England and Wales before the end of 2 years beginning with the day
25on which the order was made without the consent of the defendant
and the Chief Constable.

(5B)The court must not discharge a sexual risk order made by a court in
Scotland, or vary such an order so as to remove a prohibition or
requirement, unless the order or, as the case may be, the prohibition
30or requirement is no longer necessary for the purpose of—

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

(b)protecting children or vulnerable adults generally, or any
particular children or vulnerable adults, from harm from the
35defendant outside the United Kingdom.”

(9)In subsection (8), at the appropriate place insert—

• ““the defendant”, in relation to a sexual risk order made under
  section 27 of the Abusive Behaviour and Sexual Harm
  (Scotland) Act 2016 (asp 22), means the person against whom
  40the order has effect;”;

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

Amendments of the Sentencing Code

3(1)Section 351 of the Sentencing Code (variation of sexual harm prevention
order by court in Northern Ireland) is amended as follows.

(2)In the heading, after “Variation” insert “, renewal or discharge”.

(3)5In subsection (2), in the words after paragraph (b), after “varying” insert “,
renewing or discharging”.

(4)In subsection (5), in the words after paragraph (b)—

(a)after “varying” insert “, renewing or discharging”, and

(b)for “subsections (6) and (7)” substitute “subsections (5A) to (7A)”.

(5)10After subsection (5) insert—

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

(a)the time for which the defendant is likely to remain in
Northern Ireland, and

(b)whether the defendant is likely to return to, or to visit,
15England and Wales.”

(6)In subsection (6), in the words before paragraph (a)—

(a)after “An order may be” insert “renewed, or”, and

(b)for “only” substitute “, only”.

(7)In subsection (7), in the words before paragraph (a), after “An order as”
20insert “renewed or”.

(8)After subsection (7) insert—

“(7A)The 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 of the
25Police Service of Northern Ireland.”

Part 2 Variation of order by court in Scotland

Amendments of the Sexual Offences Act 2003 (c. 42)

4After section 136ZD of the Sexual Offences Act 2003 insert—

“136ZE 30 Variation, renewal or discharge of sexual harm prevention order etc
by court in Scotland

(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)35is in or is intending to come to Scotland.

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

(a)a sexual harm prevention order,

(b)a sexual offences prevention order, or

(c)a foreign travel order.

(3)40An 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 (12), 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 harm prevention order, the
defendant is likely to return to, or to visit, England
15and Wales, or

(ii)in the case of a sexual offences prevention order or
foreign travel order, the defendant is likely to return
to, or to visit, Northern Ireland.

(6)A sexual harm prevention order may be renewed, or varied under
20this 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)protecting the public in Scotland, or any particular members
of the public in Scotland, from sexual harm from the
defendant, or

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

(7)A sexual harm prevention order as renewed or varied under this
section may contain only such prohibitions and requirements as are
30necessary 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
35from the defendant outside the United Kingdom.

(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 Scotland, or any particular members of the
40public in Scotland, 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
members of the public from serious sexual harm from the defendant.

(10)45A foreign travel order may be renewed, or varied under this section
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 serious sexual harm from the defendant outside the
United Kingdom.

(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 170 of the Police, Crime,
Sentencing and Courts Act 2022 (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