|Sexual Offences Bill - continued||House of Commons|
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Clause 113: Section 112: interpretation
101. Clause 113 defines various of the terms used in previous Clause 112. Subsection (6) provides that any reference to a child under 16 is to be taken to mean a child under 17 in Northern Ireland.
Clause 114: Section 112: qualifying offenders
102. Clause 114 defines "qualifying offenders" for the purposes of a foreign travel order. The categories of person are set out at subsection (1) to clause 114 and comprise of people convicted, or found not guilty by reason of insanity, or found to be under a disability and to have done the act charged, or cautioned, or, in the case of young people, reprimanded or warned in respect of an offence listed in subsection (2). Subsection (2)(d) provides that "qualifying offender" applies to an offence specified in Schedule 3, which are exclusively sexual offences, where the victim of the offence was under 16 at the time of the offence. Subsection (2)(a) identifies a number of offences from Schedule 3 that deal with the taking, making and distributing indecent photographs, or pseudo-photograph, of children under 16. Subsection (2)(b) refers to committing an offence or trespassing with intent to commit a sexual offence where the intended offence, was against a person under 16. Subsection (2)(c) refers to service offences which correspond to the civil sexual offences. Subsection (3) provides that a person also becomes a 'qualifying offender' if, in relation to a relevant offence he committed in another country, he has been cautioned, or convicted, or found either to be not guilty by reason of insanity or to be under a disability and to have done the act charged (or the local equivalent of such findings). Whether such an outcome took place before or after the commencement of this Part of this Bill is irrelevant. A 'relevant offence' in this context is defined in subsection (4) as an offence in the country concerned which would have fallen within subsection (2) were it to have been committed in any part of the United Kingdom. Subsection (5) provides that the terminology used in the legislation of the other country does not have to match precisely the terminology used in the legislation of England and Wales or Northern Ireland. Subsection (6) and subsection (7) relate to the procedures to be adopted in satisfying the court in relation to a foreign offence that the act in question would have constituted an offence if it had been done in any part of the United Kingdom. Subsection (6) provides that, unless the defendant requests that the prosecution proves this to be the case (in the manner specified), it will be assumed that the condition is met. Subsection (7) permits the court to allow the defendant to require such proof from the prosecution even if he failed to follow the mechanism set out in subsection (6).
Clause 115: Foreign travel orders: effect
103. Clause 115 sets out the effect of a foreign travel order. Subsection (1) provides that the duration of the order will be not longer than six months and will be specified in the order. Subsection (2) provides that the order will prohibit the subject from (a) travelling to a country outside the UK named in the order (such as Thailand and Malaysia); or (b) travelling to any country outside the UK that is not named in the order (for example, this may be needed where the offender is banned from travelling anywhere in the world other than to a named country - which he may need to visit for family reasons); or (c) travelling to any country outside the UK (where the offender is such a risk to children that a universal ban is required). Subsection (4) provides that if, while a foreign travel order is in force, the defendant is not a 'relevant offender' i.e. is not subject to the notification requirements of this Part of the Bill, he must comply with any regulations made under section 87(1) (i.e. regulations imposing notification requirements relating to foreign travel. In the vast majority of cases however, the offender will already be subject to all of the notification requirements by virtue of his conviction for a sexual offence against a child.
Clause 116: Foreign travel orders: variations, renewals and discharges
104. Clause 116 sets out provisions permitting the variation, renewal or discharge of a foreign travel order. A defendant may wish to apply for a variation of an order if for example the order prohibits him from travelling to Romania but during the course of the order he has to attend an urgent business meeting in Romania. The police may wish to apply for a renewal of an order if, on the expiry of the previous order, they still have cause to believe that the defendant poses a risk of serious sexual harm to children abroad.. Subsection (5) provides that an application for variation, renewal or discharge may be made to the court which made the original order; or to a magistrates' court in the area where the subject resides (which will probably be most often used where the subject is making the application); or to any magistrates' court in the police area of the chief officer making the application. Subsection (3) provides that the court which hears the application must hear any person mentioned in subsection (2) who wishes to be heard. Having done so, it may make any order it considers appropriate in the light of the restrictions in subsection (4). Subsection (4) provides that any additional prohibitions imposed on the subject must be necessary for the purpose of protecting children generally or any child from serious sexual harm from the defendant.
Clause 117: Foreign travel orders: appeals
105. This clause provides a right of appeal to the Crown Court against the making of a foreign travel order. Subsection (1) provides that such an appeal may be against either the making of an order; or against the making (or refusal to make) an order varying, renewing or discharging a foreign travel order. Subsection (3) provides that any order made by the Crown Court will be deemed to be an order of the magistrates' court for the purposes of subsequent applications to vary, renew or discharge the order.
Clause 118: Appeals in relation to foreign travel orders: Scotland
106. Clause 118 sets out the appeals mechanism for such orders in Scotland. Provision is also made that whilst during such an appeal the FTO shall remain in force.
Clause 119: Sections 112 to 116: Scotland
107. This clause sets out the manner in which the FTO regime is to apply in Scotland. The procedures for the FTO mirror the proposed procedure for notification orders in Scotland so as to ensure that the procedures are consistent with each other and with Scottish civil procedure. Accordingly in subsection (1) the chief constable is required to apply for a foreign travel order by summary application.
Clause 120: Offence: breach of foreign travel order
108. Clause 120 makes it an offence for the offender to breach any prohibition contained within a foreign travel order without reasonable excuse. Subsection (3) provides that a court cannot make a conditional discharge (or a probation order in Scotland) where someone is convicted of this offence.
Clause 121: Risk of sexual harm order: applications, grounds and effects.
109. This and the following six clauses relate to a civil, preventative order for which the police can apply to a Magistrates' Court in respect of a person over the age of 18 who has on at least two occasions engaged in sexually explicit conduct or communication with a child or children and there is reasonable cause to believe that the order is necessary to protect a child or children from harm arising out of future such acts by the defendant. The defendant may or may not have a conviction for a sexual (or any other) offence. The child or children must be under 16 (clause 122(3)) or in Northern Ireland, 17 (clause 122(8). Subsection (1) explains the circumstances in which a risk of sexual harm order may be made. The acts in subsection (3) which constitute the trigger behaviour for an order all involve explicitly sexual communication or conduct with or towards and child. The terms "image" and "sexual activity" are defined and an explanation is given of when a communication is sexual in clause 122(6). The types of behaviour at (3)(a) and (b) may amount to a criminal offence, for example under clauses 10 to 13. However the trigger behaviour need not amount to criminal conduct. Subsection (3)(c) would cover a person giving condoms or a sex toy to a child. Subsection (3)(d) would cover a person sending pornographic images to a child over the Internet or describing the sexual acts he would like to carry out on the child. An order will not be made unless the court is satisfied (under subsection (4)(b)) that further such acts would cause a child or children physical or psychological harm (clause 122(2)).
Clause 122: Section 121: Interpretation.
110. The definition of "image" at subsection (4) includes photographs, cartoon strips, email attachments and drawings. The references to "but regardless of any person's purpose" in subsections (5) to (7) restricts the definition of "sexual" to where the reasonable person, just from the circumstances of the activity, communication or image, would consider it to be sexual, without having to enquire into the motive behind it. This covers matters which, in all the circumstances, are explicitly or overtly sexual, for example a pornographic film or a description of oral sex. However, where for example a double entendre is used, the reasonable person may have to consider the speaker's motive for saying it before he could decide whether the communication was sexual. This would therefore not come within the definition at subsection (6) because it is not possible to tell just from the circumstances that is was sexual.
Clause 123: RSHOs: variations, renewals and discharges
111. Clause 123 provides for variations, renewals and discharges of the risk of sexual harm order. The procedure here is the same as that used to vary, renew or discharge a sexual offences prevention order that was imposed on an offender in the community (the application is by complaint to the Magistrates' Court), and is explained in the notes to clause 106. (As the risk of sexual harm order is a new order, not a re-enactment, there is no equivalent provision to clause 106(8).
Clause 124: Interim Risk of Sexual Harm Orders
112. This clause allows the police to apply for an interim risk of sexual harm order where an application has been made for a full order in respect of a defendant, but has not yet been 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.
Clause 125: RSHOs and Interim RSHOs : appeals
113. The appeals process explained in this clause should be used where the defendant is challenging the fact that an order has been imposed. Subsection (3) provides that (save for where it directs that an application should be re-heard by the Magistrates' Court) an order made by the Crown Court is to be treated as if it were made by the Magistrates' Court which made the original order, for the purposes of determining where any application for variation, renewal or discharge should be heard (under clauses 123(7) or 124(5)).
Clause 126: Offence: breach of RSHO or Interim RSHO
114. It is a criminal offence to breach a risk of sexual harm order or interim risk of sexual harm order unless the defendant has a reasonable excuse for doing so.
Clause 127: Effect of a conviction etc. of an offence under Section 115
115. Subsection (2) relates to those defendants who are already "relevant offenders" (that is, subject to the notification requirements of this Part - see clause 81) when convicted etc. of an offence under clause 126. Such a person will remain subject to these notification requirements for the duration of the "relevant order" (defined in subsection (5)). That is, the duration of the risk of sexual harm order that he breached, or if he breached an interim order, either for the duration of that order, or if a main order is made, the duration of the main order. However, if the notification period (see clause 83) which originally applied to the person lasts for longer than the order, the person remains subject to the notification requirements until the end of that longer period. Subsection (3) relates to those defendants who are not already subject to the notification requirements when convicted of an offence under clause 126. Such a person will become subject to notification requirements as a result of that offence until the relevant order (explained above) ceases to have effect. For the purpose of the notification requirements, the "relevant date" (see clause 84) is the date when the person is convicted etc. of the clause 126 offence. This means, for example, that the person must comply with the initial notification requirement (at clause 84(1)) within 3 days of that conviction etc.
Clause 128: Power to amend Schedules 3 and 4
116. Clause 128 allows the Secretary of State to amend by statutory instrument the list of offences in Schedules 3 and 4 and any of the age or sentence thresholds that apply to those offences. The offences listed in Schedule 3 trigger, providing the thresholds are met, the notification requirements of this Part of the Bill. They can also be used, where the victim was under 16, to apply for a foreign travel order. The offences in Schedule 3 and Schedule 4 can trigger a sexual offences prevention order. Any amendment to these offences will not however extend the notification requirements of this Part retrospectively by, for example, making persons convicted of an offence added to Schedule 3 subject to the notification requirements, where they were convicted of that offence before the amendment was made. Subsection (3) provides, however, that it will be possible, where a new offence is being added, for the police to apply for a sexual offences prevention order or an interim order or a foreign travel order in respect of offenders convicted before the date of the amendment. The amending order will be 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 129: Young offenders: application
117. Young offenders are not sentenced to periods of imprisonment in the same way as adults. Clause 129 therefore lists the sentences and periods of detention applicable to young offenders that should be considered as equivalent to a sentence of imprisonment for the purposes of working out the notification period and other purposes (e.g. clause 82(3)(b)).
Clause 130: Offences with thresholds
118. Clause 130 provides that where an offence in Schedule 3 has a sentence (or other disposal, e.g. hospital order) threshold, the offender is to be regarded as having a conviction or a relevant finding for the offence only when the threshold is met. This applies only to Part 2 of the Bill. Establishing the date of conviction or finding is important because it triggers the date when the notification requirements start to apply to the offender. For example, under clause 84, an offender is required to make an initial notification at a police station within 3 days of the date of his conviction or finding for a relevant offence. In the case of offences with disposal thresholds, the notification requirements will only apply where the thresholds are met and this will not be known until the offender is dealt with by the court. This could be some time after being convicted etc for the offence. For example, a 25 year old who is convicted of sexual assault against a 20 year old woman would not be required to 'register' until he is sentenced to imprisonment or given an 18 month community sentence by the court. Subsection (3) to subsection (6) cover foreign convictions and findings. These are relevant when determining whether to make a notification order and may be relevant in deciding whether to make a sexual offences prevention order or a foreign travel order. The effect of the subsections is the same as that on convictions etc in the United Kingdom i.e. the date of conviction or finding will be the date when the relevant disposal thresholds for the offence are met. The offences in Schedule 4 (offences against which a sexual offences prevention order can be made) do not currently have sentence thresholds. However subsection (4) of clause 128 provides a power to the Secretary of State that will enable thresholds for offences in Schedules 3 and 4 to be amended in future. Subsection (7) of clause 130 therefore extends the provisions to cover Schedule 4.
Clause 131: Part 2: General interpretation
119. Clause 131 defines certain terms used in this Part of the Bill.
Clause 132: Conditional discharges and probation orders
120. Clause 132 provides that various provisions in other legislation to the effect that a conviction with absolute or conditional discharge is deemed not to be a conviction, are not to apply for the purposes of this Part of the Bill in relation to orders for conditional discharge made in respect of a post-commencement conviction.
Clause 133: Interpretation: mentally disordered offenders
121. Clause 133 clarifies how the provisions in this Part apply in respect of mentally disordered offenders.
Clause 134: Part 2: Northern Ireland
122. This Clause makes a series of minor referential modifications necessary for the application and operation of Part 2 in Northern Ireland.
Part 3: General
Clause 138: Commencement
123. Clause 138 establishes a power for the Secretary of State to make a statutory instrument setting out how the measures included in this Bill will come into force. Subsection (2) sets out what such an order may contain. It allows provision to be made for different parts of the Bill to commence at different times. It also allows for the order to contain transitional provisions. The provisions relating to Scotland that are within devolved competence will be commenced by Scottish Ministers.
FINANCIAL EFFECTS AND EFFECTS ON PUBLIC SERVICE MANPOWER
124. The financial effects of the Bill and the effects on public service and manpower will be minimal. There may be a minor impact on the prison population and its associated costs in the longer-term, and a small impact on police and court resources, but no additional financial provision is expected to be necessary.
SUMMARY OF THE REGULATORY APPRAISAL
125. The Regulatory Impact Unit of the Cabinet Office is content that no regulatory impact assessment is required.
EUROPEAN CONVENTION ON HUMAN RIGHTS
126. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before the Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Home Secretary has made the following statement:
127. The provisions of the Bill will come into force on days that the Secretary of State or Scottish Ministers will specify by order under clause 138.
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