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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; | 5 |
(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 | 10 |
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 | 15 |
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 | 20 |
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 | 25 |
(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 | 30 |
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 | 35 |
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 | 40 |
(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 | 45 |
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(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— | 5 |
(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 | 10 |
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 | 15 |
(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 | 20 |
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 | 25 |
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 | 30 |
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 | 35 |
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 | 40 |
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 | 45 |
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. | |
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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 | 5 |
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 | 10 |
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 | 15 |
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 | 20 |
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 | 25 |
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 | 30 |
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 | 35 |
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 | 40 |
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. | 45 |
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(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, | 5 |
(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). | 10 |
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 | 15 |
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— | 20 |
(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, | 25 |
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 | 30 |
(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 | 35 |
already subject to such an order (whether made by that court or another), the | |
earlier order ceases to have effect. | |
(7) Section 104(3) 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 | 40 |
varying, renewing or discharging a sexual offences prevention order. | |
(2) The persons are— | |
(a) the defendant; | |
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(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. | 5 |
(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 | 10 |
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 | 15 |
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 | 20 |
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 | 25 |
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’ | 30 |
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 | 35 |
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), | 40 |
(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. | 45 |
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