|Sexual Offences Bill - continued||House of Commons|
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Clause 86: Notification requirements: periodic notification
74. Clause 86 provides that an offender must re-notify the police of the details set out in subsection (5) of clause 84 within one year of the last time he was required to notify or, (for the first year only) if later, commencement and annually thereafter on a rolling basis. Commencement will only be a trigger for this periodic notification requirement where a person is exempt from complying with subsection (1) of clause 84 by reason of subsections (2), (3) or (4) of clause 84 (where the person has complied with an earlier initial notification requirement). This means that where a person becomes subject to the notification requirements for the first time and does not change his name or address and does not stay away from home for 7 days or more, he will have to re-notify within a year of his initial notification and annually thereafter. Where a person does notify his having stayed away from home for 7 days, for example, he will have to re-notify within a year of giving that notification. And, if within that year he notifies another period spent away from home, or a change of name or address, the re-notification will be put back to a year after that latter notification. Subsection (2) provides that where a relevant offender is detained or abroad in the ways provided at subsection (3) at the time the periodic notification requirement falls due, the person may give that notification up to 3 days after he is released from the detention or returns to the UK.
Clause 87: Notification requirements: travel outside the United Kingdom
75. Subsection (1) of clause 87 provides a power for the Secretary of State to make regulations setting out notification requirements for relevant offenders who leave the UK or any description of such offenders (for example those intending to leave the UK for a specified period). The regulations would oblige such persons to notify certain details concerning their travel plans to the police. Subsection (4) might be used for example to make provision for young offenders to notify for a different period of foreign travel than others. These regulations are subject to the affirmative resolution procedure (clause 135(2)). For Scotland, the regulations will be made by Scottish Ministers and laid before the Scottish Parliament.
Clause 88: Method of notification and related matters
76. Clause 88 describes how and where an offender is required to notify information to the police under the clauses relating to initial notification, change of details and periodic notification. It provides a power for the Secretary of State to make regulations specifying the police stations at which an offender may notify the police of the relevant information. For Scotland the regulations will be made by Scottish Ministers and laid before the Scottish Parliament. The regulations will prescribe one or more police stations for each police area and where more than one has been prescribed for a particular offender's area, that offender may notify at any one of them. The term 'local police area' is defined in subsection (3) of clause 89. Where the notification relates to having stayed away from a home address for 7 days or more or to a prospective change of address, the offender may use a police station within the police area of that other address (subsection (2)). When making a notification, other than a notification of foreign travel, the police may take the person's fingerprints and/or photograph (subsection (4)). The term "photograph" is explained at subsection (2) of clause 89 and, because subsection (4)(b) refers to a photograph of any part of the person, it will include an iris scan.
Clause 89: Section 88: interpretation
77. Subsection (3) of clause 89 defines "local police area". Subsection 3(b) and (c) deal with cases where the offender has no home address (as defined in subsection (7) of clause 84). He may have no home address because for example he spends most of his time abroad and only returns to the UK occasionally, or because he is itinerant.
Clause 90: Young offenders: parental directions
78. Clause 90 provides that, in the case of young offenders, the court may direct a person with parental responsibility for the offender to comply with the notification requirements in place of the offender until either the offender attains the relevant age (18 in England, Wales and Northern Ireland and service law; 16 in Scotland) or until a date before that specified by the court. The court may make the direction at the time it deals with the offender in respect of a conviction or finding which triggers the notification requirements or when it makes an order which imposes those requirements. Subsections (4) and (5) also allow the police to apply to the court for a parental direction to be made. This will cover cases where the court, for whatever reason, did not make a direction at the stage referred to above but an order now seems appropriate. It will also cover cases where the young offender has received a reprimand or final warning for a Schedule 3 offence.
Clause 91: Parental directions: variations, renewals and discharges
79. Clause 91 provides that a court may vary, renew or discharge a parental direction. This may be required where, for example, there is a direction that the father notifies on behalf of the young offender and the father subsequently becomes divorced from the mother and the offender goes to live with the mother. An order may need to be discharged where, for example, the parent can no longer control the young offender and is unable to ensure that he attends with the parent to notify. In these circumstances the court may consider that the liability for his failure to attend should revert to the young offender himself.
Clause 92: Offences relating to notification
80. Subsection (3) enables a prosecution to be brought at a later date than would otherwise be the case if the offence was only committed on the first day of breach. An offender cannot be prosecuted more than once for the same failure. However, if an offender fails to comply with a requirement, is convicted for this offence and then fails to comply again in respect of the same provision, he commits a new offence and may be prosecuted again. Where the offences in this clause refer to a 'reasonable excuse', this might be, for example, where an offender does not provide the information in the required time scale because he is in hospital following an accident. In respect of an offence relating to subsection 2(b) of clause 90 a reasonable excuse might be that the parent took all reasonable steps to persuade the young offender to accompany him to the police station.
Clause 93: Certificates for the purposes of Part 2
81. Clause 93 provides that when a court convicts or makes a relevant finding in respect of a person in relation to a Schedule 3 offence, or when a person is cautioned by the police, the court or police officer may issue a certificate that will be evidence of the conviction etc. or caution for a relevant offence and of the notification requirements which follow from it. Subsection (4) provides a power for the Secretary of State to prescribe by order the form of caution to be given. These regulations will be subject to the negative resolution procedure (clause 135(3)). For Scotland, the regulations will be made by Scottish Ministers and laid before the Scottish Parliament.
Clause 94: Information about release or transfer
82. This clause re-enacts, with amendments, section 5B of the 1997 Act. Clause 94 allows the Secretary of State to make regulations requiring those who are responsible for an offender while he is in detention (as defined in subsection (1)) to notify other relevant authorities of his release or transfer to another institution. The regulations may define the person responsible for the offender (for example, the Chief Executive of a hospital) and the person who must be informed about release and transfer. An example might be that the governor of a prison is required to inform the local chief officer of police when a relevant offender is about to be released from his prison. These regulations will be subject to the negative resolution procedure (clause 135(3)). For Scotland, the regulations will be made by Scottish Ministers and laid before the Scottish Parliament.
Clause 95: Notification orders: applications and grounds
83. Clause 95 provides a power for the police to apply to the magistrates' court for an order making an offender who has been convicted, cautioned or had a relevant finding made against him, in respect of a "relevant offence" (defined in subsection (1) of clause 97) abroad, subject to the notification requirements. The chief officer of police may apply for an order if the defendant resides in his police area or the chief officer believes that the person is currently in or is intending to come to his police area. The "intending to come to" limb will cover for example a person who is in France but who the chief officer of Kent believes has plans to arrive at Dover within the next few days. A notification order might, for example, be sought in respect of a UK citizen who has been convicted of a sexual offence overseas and who is deported to the UK on release from prison abroad. The police could also apply for a notification order in respect of a foreign citizen who the police know has been convicted for a sex offence in his or her own country and who comes to the UK. The provisions in subsection (3) reflect the partially retrospective arrangements that apply in respect of the application of the notification requirements to people with convictions etc. in the UK (see clause 82). The relevant conviction, finding or caution abroad must have taken place on or after 1 September 1997, which was the commencement date for the 1997 Act. Findings or convictions that occurred before that date will only be a trigger for a notification order where the person had yet to be dealt with on 1 September 1997 or was still serving a sentence or was subject to supervision or otherwise detained in respect of that offence on that date. The effect of subsection (4) is that an order may not be made where the notification period (the period for which an offender is to be subject to the notification requirements), calculated from the date of conviction etc. abroad, has expired. So where, for example, a person is cautioned abroad for a relevant offence (the notification period for a post-commencement caution is 2 years), the court may not make a notification order against that person if he comes to the UK 2 years or more after receiving the caution.
Clause 96: Notification orders: effect
84. Clause 96 provides that where an order is made, the offender will become subject to the notification requirements for the period set out in clause 83 that applies to the sentence he received abroad. This period will run from the date of conviction etc. abroad. So for example, if a person was convicted abroad of an offence equivalent to the domestic offence of sexual assault and sentenced to 6 months' imprisonment, the notification period for a sentence of 6 months would be 7 years. If the offender did not come to the UK until 5 years after the conviction, the notification requirements imposed under a notification order would only last for the remaining 2 years of the 7 since the date of conviction. The provisions of subsection (3) modify the notification provisions as they apply to people subject to notification orders. The effect of subsection (4) is that for people subject to notification orders, the initial obligation to provide details to the police will be within 3 days of the date of service of the order, and (subject to the other provisions in clause 86 relating to annual notification) annually thereafter.
Clause 97: Sections 95 and 96: relevant offences
85. A relevant offence for the purposes of a notification order is an act constituting an offence abroad which would also have amounted to one of the offences set out in Schedule 3 had it been committed in the UK. The defendant may require the police to show that his offence would have constituted an offence in Schedule 3 in the UK. Otherwise, this is deemed to be accepted.
Clause 98: Interim notification orders
86. Clause 98 allows the police to apply for an interim notification order pending the application for a main order being heard. This may be, for example, because papers need to be obtained from the foreign country before the main application can be determined. Subsections (5) and (6) provide that the offender will be subject to the notification requirements during the period of the order, with the notification period starting from the date of service of the order, as opposed to the date of the conviction etc. This means, for example, that the defendant will have to comply with the initial notification requirement (at clause 84(1)) within 3 days of the service of the order.
Clause 99: Notification orders and interim notification orders: appeals
87. Clause 99 allows the offender to appeal to the Crown Court against the making of an interim or full order.
Clause 100: Appeals in relation to notification orders and interim notification orders: Scotland
88. Clause 100 allows the offender to appeal against the making of an interim or full order in accordance with normal civil procedures. It also makes clear that where an appeal has been taken against an interlocutor any order can continue to have effect pending the appeal.
Clause 101: Sections 95 to 98: Scotland
89. Clause 101 applies the notification order power to Scotland, subject to certain modifications. The procedure for the notification order mirrors the existing procedure for sex offender orders so these modifications ensure that the procedure is consistent with this and Scottish civil procedure. Similar to sex offender orders, the police will apply for a notification order by summary application and a record of evidence is required to be kept by the clerk.
Clause 102: Sexual offences prevention orders: applications and grounds
90. Clause 102 explains the circumstances in which a sexual offences prevention order may be made against an offender. Sexual offences prevention orders are civil preventative orders designed to protect the public from serious sexual harm. These orders replace with amendments restraining orders and sex offender orders (provisions in relation to which are found at section 5A of the 1997 Act and sections 2 to 4 and section 20 of the 1998 Act respectively in relation to England, Wales and Scotland and Article 6 and 6a of the Criminal Justice (Northern Ireland) Order 1998). Broadly, a sexual offences prevention order may be made by a court on conviction etc. for an offence listed in Schedules 3 or 4, or following an application by the police in respect of a person with such a conviction etc. living in the community. The offences in Schedule 3 are all sexual offences, some of which are subject to thresholds in relation to age and sentence, below which the offence will not trigger a sexual offences prevention order. The offences relating to England and Wales and to Northern Ireland in Schedule 4 are violent offences and various offences under this Bill relating to trafficking and prostitution and child pornography. The lists of offences relating to England and Wales and Northern Ireland include murder as well as all the offences in Schedule 11 of the Criminal Justice Bill, which relates to the provisions in that Bill dealing with "dangerous offenders". In addition, the courts in England, Wales and Northern Ireland will have power to make an order in respect of persons convicted in Scotland of an offence (other than for an offence in Schedule 3) inferring personal violence. In its application to Scotland, clause 102 allows a chief constable to make an application for such an order in respect of persons convicted in the UK of a sexual offence set out in Schedule 3, or, where the person has a conviction from England, Wales or Northern Ireland, in respect of offences set out in Schedule 4 apart from at paragraph 64. Clause 102 provides that a court may make an order when it deals with an offender for a conviction or relevant finding in respect of an offence listed in Schedules 3 and 4 where it is satisfied that it is necessary to make such an order for the purpose of "protecting the public in the United Kingdom or any particular members to the public from serious sexual harm from the defendant". This phrase is defined in subsection (3) of clause 104. The court may be satisfied of this necessity either by the circumstances of the offence or from other evidence of the defendant's behaviour. Clause 102 also provides that a chief officer of police may make an application to the Magistrates' Court for a sexual offences prevention order in respect of an offender who resides in his police area, or who a chief officer believes is in or is intending to come to his police area. The court may make such an order if it is satisfied that the person is a 'qualifying offender' as defined in clause 104 subsection (5) to subsection (7) and that the defendant's behaviour since his first relevant conviction etc. makes an order necessary. The date after which the behaviour is to have occurred is referred to in subsections (1)(a) and (5)(b) as 'the appropriate date'. This is defined in subsection (8) of clause 104. It refers to the first date on which the relevant conviction etc. took place, so that, where the person has a conviction for more than one offence in Schedules 3 or 4, the police may rely on evidence of behaviour that took place any time after the first of those convictions. An example of when the police might apply for a sexual offences prevention order is as follows. An offender has a conviction for sexual activity with a child and has been released after his term of imprisonment. Following his release he behaves in a way that suggests he is likely to offend again, for example by loitering around schools or inviting children back to his house. An application for a sexual offences prevention order is to be made by complaint. This is a civil procedure and the relevant procedure is set out at sections 51 to 57 of the Magistrates' Courts Act 1980.
Clause 103: SOPOs: further provision as respects Scotland
91. Clause 103 makes specific provision for Scottish courts to grant a sexual offences prevention order on the application of a chief constable where an offender in Scotland has a conviction for an offence with a significant sexual aspect in terms of paragraph 57 of Schedule 3, or where, if the conviction pre-dates the commencement of the Part, the chief constable considers that had the conviction been after commencement it is likely that a determination in terms of paragraph 57 would have been made. Clause 104: Section 102: supplemental. Subsection (5) to subsection (7) define the term 'qualifying offender' which applies in relation to orders made against offenders living in the community.
Clause 104: Section 102: supplemental
92. Subsection (5) to subsection (7) define the term 'qualifying offender' which applies in relation to orders made against offenders living in the community. This includes those who have a conviction, finding or caution for an offence overseas that is equivalent to one of the offences in Schedules 3 or 4.
Clause 105: SOPOs: effect
93. Subsection (1) of clause 105 explains what an order does and for how long it lasts. An order may prohibit the offender from doing anything specified in it. Subsection (2) provides that the prohibitions contained within an order must be necessary to protect the public or any particular members of the public from serious sexual harm from the defendant. This phrase is defined in clause 104(3). Prohibitions could include, for example, preventing an offender from contacting his victims or from taking part in sporting activities that involve close contact with children or from living in a household with girls under 16. The order must last for a minimum period of five years (subsection 1(b)). The period must be specified in the order but it may be an indefinite period and the period specified will not prevent a further order being made. However, subsection (6) operates to ensure an offender cannot be subject to more than one sexual offences prevention order at any one time. Subsection (3) provides that where an order is made against an offender who is already subject to the notification requirements but the notification period would end during the currency of the order, he is to remain subject to the notification requirements for the duration of the order. If the notification period attaching to a relevant conviction etc. lasts for longer than the order, the offender will remain subject to the notification requirements for that longer period. Subsection (4) provides that where the offender is not subject to the notification requirements at the time an order is made, he will become subject to the notification requirements for the duration of the order. The effect of subsection (5) is that the notification period runs from the date of service of the order (not the date of conviction etc.). This means, for example, that the defendant will have to comply with the initial notification requirement (at clause 84(1)) within 3 days of the service of the order.
Clause 106: SOPOs: variations, renewals and discharges
94. Clause 106 enables either the offender subject to the order or the various chief officers of police listed in subsection (2) to apply for an order to be varied, renewed or discharged. The defendant might, for example, seek to vary an order if he finds the prohibitions are operating on him unduly harshly. He might apply for a discharge if he intended to emigrate. A chief officer of police who believes the defendant is moving to his area might apply for a variation if, for example, the order was made when the defendant was living in another part of the country and only restricted the defendant's behaviour in that original area. It may also be necessary to seek a renewal of an order at the time an existing order expires, where there is evidence that the defendant still requires the measures of restraint imposed in the original order. Subsection (8) provides that the procedure in this clause will apply where variations, renewals and discharges are sought in respect of restraining orders and sex offender orders made prior to the commencement of this Part of the Bill.
Clause 107: Interim SOPOs
95. Clause 107 allows the police to apply for an interim sexual offences prevention order where an application has been made for a full order in respect of an offender living in the community. The purpose is to enable prohibitions to be placed on the offender's behaviour and to ensure that he will be subject to the notification requirements pending the application for the full order being determined. The interim order will be for a fixed period and will cease to have effect at the end of that period or when a decision is made on the full order. The effect of subsections (5) and (6) is that the defendant will be subject to the notification requirements for the duration of the order, with the notification period to run from the date of service of the order. This means, for example, that the defendant will have to comply with the initial notification requirement (at clause 84(1)) within 3 days of the service of the order.
Clause 108: SOPOs and interim SOPOs: appeals
96. Clause 108 provides for appeals against the making of an order or an interim order. The appeals process should be used where the offender is challenging the fact that an order has been imposed. Subsections (1) and (2) explain the process by which an appeal should be brought depending on the circumstances in which the order was made. Where an order was imposed following a conviction for a triggering offence, the defendant should follow the usual appeal process that would apply if he were appealing against sentence. So, where the order was made in the Crown Court, the appeal against the order should be made to the Court of Appeal. Where the order was made in the magistrates' court or the youth court, the appeal is to the Crown Court. Where the order was made following an application by the police in respect of an offender in the community, the appeal will lie to the Crown Court. Subsection (5) relates to orders made by the Crown Court following an appeal against an order imposed on an offender in the community. It provides that the order made by the Crown Court is to be treated as if it was made by the magistrates' court that imposed the original order, for the purposes of determining where any application for variation, renewal or discharge should be heard (under clause 106 or 107).
Clause 109: Appeals in relation to SOPOs and interim SOPOs: Scotland
97. Clause 109 allows an offender in Scotland to appeal against the making of an interim or full order in accordance with normal civil procedures operating in Scotland. It also makes clear that where an appeal has been made the order can continue to have effect pending the appeal.
Clause 110: Sections 102 and 104 to 107: Scotland
98. Clause 110 sets out how the sexual offences prevention order regime is to operate in Scotland. The procedure for SOPOs mirrors that for notification orders and foreign travel orders. This ensures that the procedure is consistent with each other and with Scottish civil procedure. Accordingly, a chief constable will apply for a SOPO by summary application and a record of evidence will be required to be kept by the clerk.
Clause 111: Offence: breach of SOPO or interim SOPO
99. Failure, without reasonable excuse, to comply with any prohibition in a sexual offences prevention order or an interim sexual offences prevention order is a criminal offence. Breach of any restraining order or sex offender order will also be an offence under this section.
Clause 112: Foreign travel orders: application and grounds
100. Clause 112 provides for a new civil, preventative order, the foreign travel order. The foreign travel order will enable the courts to prohibit those who have been convicted etc of a sexual offence against a child under 16 (either in this country or overseas) from travelling abroad where and so far as it is necessary to do so to protect a child or children from serious sexual harm. A foreign travel order may be made on application by the police to the magistrates' court and, if made, will place a prohibition on a sex offender from travelling abroad either to a named country or countries, to anywhere in the world other than a named country or to anywhere in the world. The police may apply for a foreign travel order at the same time as a sexual offences prevention order or separately. The term "qualifying offender" is defined at clause 114. "Appropriate date" is defined in subsection (5) of clause 113 and means the first date on which the offender was convicted etc of an offence in subsection (1) or (3) of clause 114. Subsection (3) sets out the circumstances in which the court may make an order. The phrase "the purpose of protecting children generally or any child from serious sexual harm from the defendant outside the United Kingdom" is defined in Clause 113(2).
|© Parliamentary copyright 2003||Prepared: 20 June 2003|