|
| |
| |
(3) A person guilty of an offence under this section, if the activity caused or incited | |
involved— | |
(a) penetration of B’s anus or vagina, | |
(b) penetration of B’s mouth with a person’s penis, | |
(c) penetration of a person’s anus or vagina with a part of B’s body or by | 5 |
B with anything else, or | |
(d) penetration of a person’s mouth with B’s penis, | |
is liable, on conviction on indictment, to imprisonment for a term not | |
exceeding 14 years. | |
(4) Unless subsection (3) applies, a person guilty of an offence under this section | 10 |
is liable— | |
(a) on summary conviction, to imprisonment for a term not exceeding 6 | |
months or a fine not exceeding the statutory maximum or both; | |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
10 years. | 15 |
41 Care workers: sexual activity in the presence of a person with a mental | |
disorder | |
(1) A person (A) commits an offence if— | |
(a) he intentionally engages in an activity, | |
(b) the activity is sexual, | 20 |
(c) for the purpose of obtaining sexual gratification, he engages in it | |
(i) when another person (B) is present or is in a place from which | |
A can be observed, and | |
(ii) knowing or believing that B is aware, or intending that B should | |
be aware, that he is engaging in it, | 25 |
(d) B has a mental disorder, | |
(e) A knows or could reasonably be expected to know that B has a mental | |
disorder, and | |
(f) A is involved in B’s care in a way that falls within section 43. | |
(2) Where in proceedings for an offence under this section it is proved that the | 30 |
other person had a mental disorder, it is to be taken that the defendant knew | |
or could reasonably have been expected to know that that person had a mental | |
disorder unless sufficient evidence is adduced to raise an issue as to whether | |
he knew or could reasonably have been expected to know it. | |
(3) A person guilty of an offence under this section is liable— | 35 |
(a) on summary conviction, to imprisonment for a term not exceeding 6 | |
months or a fine not exceeding the statutory maximum or both; | |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
7 years. | |
42 Care workers: causing a person with a mental disorder to watch a sexual act | 40 |
(1) A person (A) commits an offence if— | |
(a) for the purpose of obtaining sexual gratification, he intentionally causes | |
another person (B) to watch a third person engaging in an activity, or to | |
look at an image of any person engaging in an activity, | |
(b) the activity is sexual, | 45 |
| |
| |
|
| |
| |
(c) B has a mental disorder, | |
(d) A knows or could reasonably be expected to know that B has a mental | |
disorder, and | |
(e) A is involved in B’s care in a way that falls within section 43. | |
(2) Where in proceedings for an offence under this section it is proved that the | 5 |
other person had a mental disorder, it is to be taken that the defendant knew | |
or could reasonably have been expected to know that that person had a mental | |
disorder unless sufficient evidence is adduced to raise an issue as to whether | |
he knew or could reasonably have been expected to know it. | |
(3) A person guilty of an offence under this section is liable— | 10 |
(a) on summary conviction, to imprisonment for a term not exceeding 6 | |
months or a fine not exceeding the statutory maximum or both; | |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
7 years. | |
43 Care workers: interpretation | 15 |
(1) For the purposes of sections 39 to 42, a person (A) is involved in the care of | |
another person (B) in a way that falls within this section if any of subsections | |
(2) to (4) applies. | |
(2) This subsection applies if— | |
(a) B is accommodated and cared for in a care home, community home, | 20 |
voluntary home or children’s home, and | |
(b) A has functions to perform in the home in the course of employment | |
which have brought him or are likely to bring him into regular face to | |
face contact with B. | |
(3) This subsection applies if B is a patient for whom services are provided— | 25 |
(a) by a National Health Service body or an independent medical agency, | |
or | |
(b) in an independent clinic or an independent hospital, | |
and A has functions to perform for the body or agency or in the clinic or | |
hospital in the course of employment which have brought him or are likely to | 30 |
bring him into regular face to face contact with B. | |
(4) This subsection applies if A— | |
(a) is, whether or not in the course of employment, a provider of care, | |
assistance or services to B in connection with B’s mental disorder, and | |
(b) as such, has had or is likely to have regular face to face contact with B. | 35 |
(5) In this section— | |
“care home” means an establishment which is a care home for the | |
purposes of the Care Standards Act 2000 (c. 14); | |
“children’s home” has the meaning given by section 1 of that Act; | |
“community home” has the meaning given by section 53 of the Children | 40 |
Act 1989 (c. 41); | |
“employment” means any employment, whether paid or unpaid and | |
whether under a contract of service or apprenticeship, under a contract | |
for services, or otherwise than under a contract; | |
| |
| |
|
| |
| |
“independent clinic”, “independent hospital” and “independent medical | |
agency” have the meaning given by section 2 of the Care Standards Act | |
2000 (c. 14); | |
“National Health Service body” means— | |
(a) a Health Authority, | 5 |
(b) a National Health Service trust, | |
(c) a Primary Care Trust, or | |
(d) a Special Health Authority; | |
“voluntary home” has the meaning given by section 60(3) of the Children | |
Act 1989 (c. 41). | 10 |
44 Sections 39 to 42: marriage exception | |
(1) Conduct by a person (A) which would otherwise be an offence under any of | |
sections 39 to 42 against another person (B) is not an offence under that section | |
if they are lawfully married at the time. | |
(2) In proceedings for such an offence it is for A to prove that he and B were | 15 |
lawfully married at the time. | |
45 Sections 39 to 42: sexual relationships which pre-date care relationships | |
(1) Conduct by a person (A) which would otherwise be an offence under any of | |
sections 39 to 42 against another person (B) is not an offence under that section | |
if, immediately before A became involved in B’s care in a way that falls within | 20 |
section 43, a sexual relationship existed between A and B. | |
(2) Subsection (1) does not apply if at that time sexual intercourse between A and | |
B would have been unlawful. | |
(3) In proceedings for an offence under any of sections 39 to 42 it is for the | |
defendant to prove that such a relationship existed at that time. | 25 |
Indecent photographs of children | |
46 Indecent photographs of persons aged 16 or 17 | |
(1) The Protection of Children Act 1978 (c. 37) (which makes provision about | |
indecent photographs of persons under 16) is amended as follows. | |
(2) In section 2(3) (evidence) and section 7(6) (meaning of “child”), for “16” | 30 |
substitute “18”. | |
(3) After section 1 insert— | |
“1A Marriage and other relationships | |
(1) This section applies where, in proceedings for an offence under section | |
1(1)(a) of taking or making an indecent photograph of a child, or for an | 35 |
offence under section 1(1)(b) or (c) relating to an indecent photograph | |
of a child, the defendant proves— | |
(a) that at the time of the offence charged, he was married to the | |
child, or | |
| |
| |
|
| |
| |
(b) that the photograph was of the child aged 16 or over, and that | |
at the time of the offence charged, the child and he lived | |
together as partners in an enduring family relationship. | |
(2) Subsections (5) and (6) also apply where, in proceedings for an offence | |
under section 1(1)(b) or (c) relating to an indecent photograph of a | 5 |
child, the defendant proves— | |
(a) that at the time when he obtained the photograph, he was | |
married to the child, or | |
(b) that the photograph was of the child aged 16 or over, and that | |
at the time when he obtained it the child and he lived together | 10 |
as partners in an enduring family relationship. | |
(3) This section applies whether the photograph showed the child alone or | |
with the defendant, but not if it showed any other person. | |
(4) In the case of an offence under section 1(1)(a), if sufficient evidence is | |
adduced to raise an issue as to whether the child consented to the | 15 |
photograph being taken or made, or as to whether the defendant | |
reasonably believed that the child so consented, the defendant is not | |
guilty of the offence unless it is proved that the child did not so consent | |
and that the defendant did not reasonably believe that the child so | |
consented. | 20 |
(5) In the case of an offence under section 1(1)(b), the defendant is not | |
guilty of the offence unless it is proved that the showing or distributing | |
was to a person other than the child. | |
(6) In the case of an offence under section 1(1)(c), if sufficient evidence is | |
adduced to raise an issue both— | 25 |
(a) as to whether the child consented to the photograph being in the | |
defendant’s possession, or as to whether the defendant | |
reasonably believed that the child so consented, and | |
(b) as to whether the defendant had the photograph in his | |
possession with a view to its being distributed or shown to | 30 |
anyone other than the child, | |
the defendant is not guilty of the offence unless it is proved either that | |
the child did not so consent and that the defendant did not reasonably | |
believe that the child so consented, or that the defendant had the | |
photograph in his possession with a view to its being distributed or | 35 |
shown to a person other than the child.” | |
(4) After section 160 of the Criminal Justice Act 1988 (c. 33) (possession of indecent | |
photograph of child) insert— | |
“160A Marriage and other relationships | |
(1) This section applies where, in proceedings for an offence under section | 40 |
160 relating to an indecent photograph of a child, the defendant | |
proves— | |
(a) that at the time of the offence charged, he was married to the | |
child, or | |
(b) that the photograph was of the child aged 16 or over, and that | 45 |
at the time of the offence charged, the child and he lived | |
together as partners in an enduring family relationship. | |
| |
| |
|
| |
| |
(2) This section also applies where, in proceedings for an offence under | |
section 160 relating to an indecent photograph of a child, the defendant | |
proves— | |
(a) that at the time when he obtained the photograph, he was | |
married to the child, or | 5 |
(b) that the photograph was of the child aged 16 or over, and that | |
at the time when he obtained it the child and he lived together | |
as partners in an enduring family relationship. | |
(3) This section applies whether the photograph showed the child alone or | |
with the defendant, but not if it showed any other person. | 10 |
(4) If sufficient evidence is adduced to raise an issue as to whether the child | |
consented to the photograph being in the defendant’s possession, or as | |
to whether the defendant reasonably believed that the child so | |
consented, the defendant is not guilty of the offence unless it is proved | |
that the child did not so consent and that the defendant did not | 15 |
reasonably believe that the child so consented.” | |
47 Criminal proceedings, investigations etc. | |
(1) After section 1A of the Protection of Children Act 1978 (c. 37) insert— | |
“1B Exception for criminal proceedings, investigations etc. | |
(1) It is not an offence under section 1(1)(a) for a person to make an | 20 |
indecent photograph or pseudo-photograph of a child in accordance | |
with an authorisation under this section. | |
(2) An authorisation may be given by a person within subsection (3) if it | |
appears to that person necessary for the purposes of the prevention, | |
detection or investigation of crime, or for the purposes of criminal | 25 |
proceedings, in any part of the world, or for any particular purpose | |
falling within those purposes. | |
(3) Those persons are— | |
(a) a chief officer of police, | |
(b) the Director General of the National Crime Squad, | 30 |
(c) the Director General of the National Criminal Intelligence | |
Service, | |
(d) the Commissioners of Customs and Excise, and | |
(e) the Director of Public Prosecutions. | |
(4) An authorisation may be given by the Director-General of the Security | 35 |
Service if it appears to him necessary for the exercise of any of the | |
functions of the Service. | |
(5) An authorisation may be given by the Director of GCHQ if it appears | |
to him necessary for the exercise of any of the functions of GCHQ (and | |
in this subsection “GCHQ” has the same meaning as in the Intelligence | 40 |
Services Act 1994 (c. 13)). | |
(6) An authorisation— | |
(a) must be in writing, | |
(b) must specify the person to whom it is given and the purpose for | |
which it is given, and | 45 |
| |
| |
|
| |
| |
(c) may specify conditions to which it is subject.” | |
(2) After Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. | |
1978/1047 (N.I. 17)) insert— | |
“3A. Exception for criminal proceedings, investigations etc. | |
(1) It is not an offence under Article 3(1)(a) for a person to make an | 5 |
indecent photograph or pseudo-photograph of a child in accordance | |
with an authorisation under this section. | |
(2) An authorisation may be given by a person within paragraph (3) if it | |
appears to that person necessary for the purposes of the prevention, | |
detection or investigation of crime, or for the purposes of criminal | 10 |
proceedings, in any part of the world, or for any particular purpose | |
falling within those purposes. | |
(3) Those persons are— | |
(a) the Chief Constable of the Police Service of Northern Ireland, | |
(b) the Director General of the National Crime Squad, | 15 |
(c) the Director General of the National Criminal Intelligence | |
Service, | |
(d) the Commissioners of Customs and Excise, and | |
(e) the Director of Public Prosecutions. | |
(4) An authorisation may be given by the Director-General of the | 20 |
Security Service if it appears to him necessary for the exercise of any | |
of the functions of the Service. | |
(5) An authorisation may be given by the Director of GCHQ if it appears | |
to him necessary for the exercise of any of the functions of GCHQ | |
(and in this paragraph “GCHQ” has the same meaning as in the | 25 |
Intelligence Services Act 1994 (c. 13)). | |
(6) An authorisation— | |
(a) must be in writing, | |
(b) must specify the person to whom it is given and the purpose | |
for which it is given, and | 30 |
(c) may specify conditions to which it is subject.” | |
Abuse of children through prostitution and pornography | |
48 Paying for sexual services of a child | |
(1) A person (A) commits an offence if— | |
(a) he intentionally obtains for himself the sexual services of another | 35 |
person (B), | |
(b) before obtaining those services, he has made or promised payment for | |
those services to B or a third person, or knows that another person has | |
made or promised such a payment, and | |
(c) either— | 40 |
(i) B is under 18, and A does not reasonably believe that B is 18 or | |
over, or | |
(ii) B is under 13. | |
| |
| |
|
| |
| |
(2) In this section, “payment” means any financial advantage, including the | |
discharge of an obligation to pay or the provision of goods or services | |
(including sexual services) gratuitously or at a discount. | |
(3) A person guilty of an offence under this section against a person under 13, | |
where the offence involved— | 5 |
(a) penetration of B’s anus or vagina with a part of A’s body or anything | |
else, | |
(b) penetration of B’s mouth with A’s penis, | |
(c) penetration of A’s anus or vagina with a part of B’s body or by B with | |
anything else, or | 10 |
(d) penetration of A’s mouth with B’s penis, | |
is liable, on conviction on indictment, to imprisonment for life. | |
(4) Unless subsection (3) applies, a person guilty of an offence under this section | |
against a person under 16 is liable, on conviction on indictment, to | |
imprisonment for a term not exceeding 14 years. | 15 |
(5) Unless subsection (3) or (4) applies, a person guilty of an offence under this | |
section is liable— | |
(a) on summary conviction, to imprisonment for a term not exceeding 6 | |
months or a fine not exceeding the statutory maximum or both; | |
(b) on conviction on indictment, to imprisonment for a term not exceeding | 20 |
7 years. | |
(6) In the application of this section to Northern Ireland, subsection (4) has effect | |
with the substitution of “17” for “16”. | |
49 Causing or inciting child prostitution or pornography | |
(1) A person (A) commits an offence if— | 25 |
(a) he intentionally causes or incites another person (B) to become a | |
prostitute, or to be involved in pornography, in any part of the world, | |
and | |
(b) either— | |
(i) B is under 18, and A does not reasonably believe that B is 18 or | 30 |
over, or | |
(ii) B is under 13. | |
(2) A person guilty of an offence under this section is liable— | |
(a) on summary conviction, to imprisonment for a term not exceeding 6 | |
months or a fine not exceeding the statutory maximum or both; | 35 |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
14 years. | |
50 Controlling a child prostitute or a child involved in pornography | |
(1) A person (A) commits an offence if— | |
(a) he intentionally controls any of the activities of another person (B) | 40 |
relating to B’s prostitution or involvement in pornography in any part | |
of the world, and | |
(b) either— | |
(i) B is under 18, and A does not reasonably believe that B is 18 or | |
over, or | 45 |
| |
| |
|
