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Sexual offences prevention orders | |
104 Sexual offences prevention orders: applications and grounds | |
(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 | 5 |
behaviour since the appropriate date makes it 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; | |
(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 | 10 |
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 | |
respect of a conviction for an offence listed in Schedule 3 or 5. | |
(3) This subsection applies to the defendant where the court deals with him in | |
respect of a finding— | 15 |
(a) that he is not guilty of an offence listed in Schedule 3 or 5 by reason of | |
insanity, or | |
(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— | 20 |
(a) an application under subsection (5) has been made to the court in | |
respect of him, and | |
(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 | 25 |
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— | |
(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 | 30 |
made. | |
(6) An application under subsection (5) may be made to any magistrates’ court | |
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 | 35 |
in subsection (5)(b). | |
105 SOPOs: further provision as respects Scotland | |
(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— | 40 |
(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 | |
against him in respect of— | |
(i) an offence listed in paragraph 60 of Schedule 3; or | |
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(ii) before the commencement of this Part, an offence in Scotland | |
other than is mentioned in paragraphs 36 to 59 of that Schedule | |
if the chief constable considers that had the conviction or | |
finding been after such commencement it is likely that a | |
determination such as is mentioned in paragraph 60 would | 5 |
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 | |
be made. | |
(2) An application under subsection (1) may be made by summary application to | 10 |
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 | |
in subsection (1)(b). | |
(3) The sheriff may make the order where satisfied— | 15 |
(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 | |
harm from the person; and | |
(b) where the application is by virtue of subsection (1)(a)(ii), that there was | 20 |
a significant sexual aspect to the person’s behaviour in committing the | |
offence. | |
(4) Subsection (3) of section 106 applies for the purposes of this section as it applies | |
for the purposes of section 104 and subsections (2) and (3) of section 112 apply | |
in relation to a summary application made by virtue of subsection (1) as they | 25 |
apply in relation to one made by virtue of subsection (1)(g) of that section. | |
106 Section 104: supplemental | |
(1) In this Part, “sexual offences prevention order” means an order under section | |
104 or 105. | |
(2) Subsections (3) to (8) apply for the purposes of section 104. | 30 |
(3) “Protecting the public or any particular members of the public from serious | |
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. | 35 |
(4) Acts, behaviour, convictions and findings include those occurring before the | |
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— | 40 |
(a) has been convicted of an offence listed in Schedule 3 (other than at | |
paragraph 60) or 5, | |
(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 | 45 |
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(d) in England and Wales or Northern Ireland, has been cautioned in | |
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— | 5 |
(a) he has been convicted of a relevant offence (whether or not he has been | |
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, | 10 |
(c) such a court has made in respect of a relevant offence a finding | |
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 | 15 |
the case may be) the first date on which he was convicted, found or cautioned | |
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 | 20 |
(b) would have constituted an offence listed in Schedule 3 (other than at | |
paragraph 60) or 5 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 | 25 |
(9), however it is described in that law. | |
(11) Subject to subsection (12), on an application under section 104(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 | 30 |
condition is not in his opinion met, | |
(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 | 35 |
(11). | |
107 SOPOs: effect | |
(1) A sexual offences prevention order— | |
(a) prohibits the defendant from doing anything described in the order, | |
and | 40 |
(b) has effect for a fixed period (not less than 5 years) specified in the order | |
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. | 45 |
(3) Where— | |
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(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, | 5 |
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 | 10 |
(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 | 15 |
already subject to such an order (whether made by that court or another), the | |
earlier order ceases to have effect. | |
(7) Section 106(3) applies for the purposes of this section and section 108. | |
108 SOPOs: variations, renewals and discharges | |
(1) A person within subsection (2) may apply to the appropriate court for an order | 20 |
varying, renewing or discharging a sexual offences prevention order. | |
(2) The persons are— | |
(a) the 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 | 25 |
intending to come to, his police area; | |
(d) where the order was made on an application under section 104(5), the | |
chief officer of police who made the application. | |
(3) An application under subsection (1) may be made— | |
(a) where the appropriate court is the Crown Court, in accordance with | 30 |
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 | |
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 | 35 |
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 | |
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 | 40 |
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 | |
the day on which the order was made, without the consent of the defendant | |
and— | 45 |
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(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 | |
defendant resides. | |
(7) In this section “the appropriate court” means— | 5 |
(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’ | |
court for the area in which the defendant resides or, where the | |
application is made by a chief officer of police, any magistrates’ court | 10 |
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 | |
area in which the defendant resides or, where the application is made | |
by a chief officer of police, any youth court whose commission area | 15 |
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), | |
(b) section 2 or 20 of the Crime and Disorder Act 1998 (c. 37) (sex offender | |
orders made in England and Wales or Scotland), and | 20 |
(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. | |
109 Interim SOPOs | |
(1) This section applies where an application under section 104(5) or 105(1) (“the | 25 |
main application”) has not been determined. | |
(2) An application for an order under this section (“an interim sexual offences | |
prevention order”)— | |
(a) may be made by the complaint by which the main application is made, | |
or | 30 |
(b) if the main application has been made, may be made by the person who | |
has made that application, by complaint to the court to which that | |
application has been made. | |
(3) The court may, if it considers it just to do so, make an interim sexual offences | |
prevention order, prohibiting the defendant from doing anything described in | 35 |
the order. | |
(4) Such an order— | |
(a) has effect only for a fixed period, specified in the order; | |
(b) ceases to have effect, if it has not already done so, on the determination | |
of the main application. | 40 |
(5) While such an order has effect— | |
(a) the defendant is subject to the notification requirements of this Part; | |
(b) this Part applies to the defendant, subject to the modification set out in | |
subsection (6). | |
(6) The “relevant date” means the date of service of the order. | 45 |
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(7) The applicant or the defendant may by complaint apply to the court that made | |
the interim sexual offences prevention order for the order to be varied, | |
renewed or discharged. | |
(8) Subsection (7) applies to orders under— | |
(a) section 2A or 20(4)(a) of the Crime and Disorder Act 1998 (c. 37) | 5 |
(interim orders made in England and Wales or Scotland), and | |
(b) Article 6A of the Criminal Justice (Northern Ireland) Order 1998 (S.I. | |
1998/2839 (N.I. 20)) (interim orders made in Northern Ireland), | |
as it applies to interim sexual offences prevention orders. | |
110 SOPOs and interim SOPOs: appeals | 10 |
(1) A defendant may appeal against the making of a sexual offences prevention | |
order— | |
(a) where section 104(2) applied to him, as if the order were a sentence | |
passed on him for the offence; | |
(b) where section 104(3) (but not section 104(2)) applied to him, as if he had | 15 |
been convicted of the offence and the order were a sentence passed on | |
him for that offence; | |
(c) where the order was made on an application under section 104(5), to | |
the Crown Court. | |
(2) A defendant may appeal to the Crown Court against the making of an interim | 20 |
sexual offences prevention order. | |
(3) A defendant may appeal against the making of an order under section 108, or | |
the refusal to make such an order— | |
(a) where the application for such an order was made to the Crown Court, | |
to the Court of Appeal; | 25 |
(b) in any other case, to the Crown Court. | |
(4) On an appeal under subsection (1)(c), (2) or (3)(b), the Crown Court may make | |
such orders as may be necessary to give effect to its determination of the | |
appeal, and may also make such incidental or consequential orders as appear | |
to it to be just. | 30 |
(5) Any order made by the Crown Court on an appeal under subsection (1)(c) or | |
(2) (other than an order directing that an application be re-heard by a | |
magistrates’ court) is for the purpose of section 108(7) or 109(7) (respectively) | |
to be treated as if it were an order of the court from which the appeal was | |
brought (and not an order of the Crown Court). | 35 |
111 Appeals in relation to SOPOs and interim SOPOs: Scotland | |
In Scotland— | |
(a) an interlocutor granting, refusing, varying, renewing or discharging a | |
sexual offences prevention order or interim sexual offences prevention | |
order is an appealable interlocutor; and | 40 |
(b) where an appeal is taken against an interlocutor so granting, varying or | |
renewing such an order the order shall, without prejudice to any power | |
of the court to vary or recall it, continue to have effect pending the | |
disposal of the appeal. | |
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