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112 Sections 104 and 106 to 109: Scotland | |
(1) Sections 104 and 106 to 109 apply to Scotland with the following | |
modifications— | |
(a) subsections (1)(b), (2) and (3) of section 104 shall be disregarded; | |
(b) an application under subsection (5) of section 104 shall not be | 5 |
competent in respect of a person who is a qualifying offender by virtue | |
only of a conviction or finding which relates to any offence listed at | |
paragraphs 64 to 111 of Schedule 5; | |
(c) in section 108(8), for the words from “orders”, where it first occurs, to | |
the end of paragraph (c) there is substituted “sex offender orders under | 10 |
section 20 of the Crime and Disorder Act 1998”; | |
(d) in section 109(8), for the words from “orders”, where it first occurs, to | |
the end of paragraph (b) there is substituted “interim sex offender | |
orders under section 20 of the Crime and Disorder Act 1998”; | |
(e) references to a chief officer of police and to his police area are to be read, | 15 |
respectively, as references to a chief constable and to the area of his | |
police force; | |
(f) references to the defendant are to be read as references to the person in | |
respect of whom the order is sought or has effect; | |
(g) an application for a sexual offences prevention order or interim sexual | 20 |
offences prevention order is made by summary application to any | |
sheriff within whose sheriffdom lies— | |
(i) any part of the area of the applicant’s police force; or | |
(ii) any place where it is alleged that the person in respect of whom | |
the order is sought or has effect acted in a way mentioned in | 25 |
subsection (5)(b) of section 104, | |
(references to “the court” being construed accordingly); | |
(h) an application for the variation, renewal or discharge of either such | |
order is made by summary application to the sheriff who made the | |
order or to a sheriff— | 30 |
(i) within whose sheriffdom the person subject to the order resides; | |
or | |
(ii) where the application is made by a chief constable, within | |
whose sheriffdom lies any part of the area of the applicant’s | |
police force, | 35 |
(references to “the court” being construed accordingly). | |
(2) A record of evidence shall be kept on any summary application made by virtue | |
of subsection (1)(g) or (h) above. | |
(3) The clerk of the court by which, by virtue of that subsection, a sexual offences | |
prevention order or interim sexual offences prevention order is made, varied, | 40 |
renewed or discharged 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 | 45 |
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). | |
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113 Offence: breach of SOPO or interim SOPO | |
(1) A person commits an offence if, without reasonable excuse, he does anything | |
which he is prohibited from doing by— | |
(a) a sexual offences prevention order; | |
(b) an interim sexual offences prevention order; | 5 |
(c) an order under section 5A of the Sex Offenders Act 1997 (c. 51) | |
(restraining orders); | |
(d) an order under section 2, 2A or 20 of the Crime and Disorder Act 1998 | |
(c. 37) (sex offender orders and interim orders made in England and | |
Wales and in Scotland); | 10 |
(e) an order under Article 6 or 6A of the Criminal Justice (Northern | |
Ireland) Order 1998 (S.I. 1998/2839 (N.I. 20)) (sex offender orders and | |
interim orders made in Northern Ireland). | |
(2) A person guilty of an offence under this section is liable— | |
(a) on summary conviction, to imprisonment for a term not exceeding 6 | 15 |
months or a fine not exceeding the statutory maximum or both; | |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
5 years. | |
(3) Where a person is convicted of an offence under this section, it is not open to | |
the court by or before which he is convicted to make, in respect of the offence, | 20 |
an order for conditional discharge or, in Scotland, a probation order. | |
Foreign travel orders | |
114 Foreign travel orders: applications and grounds | |
(1) A chief officer of police may by complaint to the magistrates’ court apply for | |
an order under this section (a “foreign travel order”) in respect of a person (“the | 25 |
defendant”) 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— | |
(a) the defendant is a qualifying offender, and | |
(b) the defendant 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 | 30 |
be made. | |
(2) An application under subsection (1) may be made to any magistrates’ court | |
whose commission area includes any part of the applicant’s police area. | |
(3) On the application, the court may make a foreign travel order if it is satisfied | |
that— | 35 |
(a) the defendant is a qualifying offender, and | |
(b) the defendant’s behaviour since the appropriate date makes it | |
necessary to make such an order, for the purpose of protecting children | |
generally or any child from serious sexual harm from the defendant | |
outside the United Kingdom. | 40 |
115 Section 114: interpretation | |
(1) Subsections (2) to (5) apply for the purposes of section 114. | |
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(2) “Protecting children generally or any child from serious sexual harm from the | |
defendant outside the United Kingdom” means protecting persons under 16 | |
generally or any particular person under 16 from serious physical or | |
psychological harm caused by the defendant doing, outside the United | |
Kingdom, anything which would constitute an offence listed in Schedule 3 if | 5 |
done in any part of the United Kingdom. | |
(3) Acts and behaviour include those occurring before the commencement of this | |
Part. | |
(4) “Qualifying offender” has the meaning given by section 116. | |
(5) “Appropriate date”, in relation to a qualifying offender, means the date or (as | 10 |
the case may be) the first date on which he was convicted, found or cautioned | |
as mentioned in subsection (1) or (3) of section 116. | |
(6) In this section and section 116 as they apply to Northern Ireland, references to | |
persons, or to a person, under 16 are to be read as references to persons, or to a | |
person, under 17. | 15 |
116 Section 114: qualifying offenders | |
(1) A person is a qualifying offender for the purposes of section 114 if, whether | |
before or after the commencement of this Part, he— | |
(a) has been convicted of an offence within subsection (2), | |
(b) has been found not guilty of such an offence by reason of insanity, | 20 |
(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 | |
respect of such an offence. | |
(2) The offences are— | 25 |
(a) an offence within any of paragraphs 13 to 15, 44 to 46, 77, 78 and 82 of | |
Schedule 3; | |
(b) an offence within paragraph 31 of that Schedule, if the intended offence | |
was an offence against a person under 16; | |
(c) an offence within paragraph 93 of that Schedule, if— | 30 |
(i) the corresponding civil offence is an offence within any of | |
paragraphs 13 to 15 of that Schedule; | |
(ii) the corresponding civil offence is an offence within paragraph | |
31 of that Schedule, and the intended offence was an offence | |
against a person under 16; or | 35 |
(iii) the corresponding civil offence is an offence within any of | |
paragraphs 1 to 12, 16 to 30 and 32 to 35 of that Schedule, and | |
the victim of the offence was under 16 at the time of the offence. | |
(d) an offence within any other paragraph of that Schedule, if the victim of | |
the offence was under 16 at the time of the offence. | 40 |
(3) A person is also a qualifying offender for the purposes of section 114 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 | |
punished for it), | 45 |
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(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 | |
equivalent to a finding that he is under a disability and did the act | 5 |
charged against him in respect of the offence, or | |
(d) he has been cautioned in respect of a relevant offence. | |
(4) In subsection (3), “relevant offence” means an act which— | |
(a) constituted an offence under the law in force in the country concerned, | |
and | 10 |
(b) would have constituted an offence within subsection (2) if it had been | |
done in any part of the United Kingdom. | |
(5) 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 | |
(4), however it is described in that law. | 15 |
(6) Subject to subsection (7), on an application under section 114 the condition in | |
subsection (4)(b) above (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 | 20 |
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. | |
(7) 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 (6). | 25 |
117 Foreign travel orders: effect | |
(1) A foreign travel order has effect for a fixed period of not more than 6 months, | |
specified in the order. | |
(2) The order prohibits the defendant from doing whichever of the following is | |
specified in the order— | 30 |
(a) travelling to any country outside the United Kingdom named or | |
described in the order, | |
(b) travelling to any country outside the United Kingdom other than a | |
country named or described in the order, or | |
(c) travelling to any country outside the United Kingdom. | 35 |
(3) The only prohibitions that may be included in the order are those necessary for | |
the purpose of protecting children generally or any child from serious sexual | |
harm from the defendant outside the United Kingdom. | |
(4) If at any time while an order (as renewed from time to time) has effect a | |
defendant is not a relevant offender, the order causes him to be subject to the | 40 |
requirements imposed by regulations made under section 86(1) (and for these | |
purposes the defendant is to be treated as if he were a relevant offender). | |
(5) Where a court makes a foreign travel order in relation to a person already | |
subject to such an order (whether made by that court or another), the earlier | |
order ceases to have effect. | 45 |
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(6) Section 115(2) applies for the purposes of this section and section 118. | |
118 Foreign travel orders: variations, renewals and discharges | |
(1) A person within subsection (2) may by complaint to the appropriate court | |
apply for an order varying, renewing or discharging a foreign travel order. | |
(2) The persons are— | 5 |
(a) the defendant; | |
(b) the chief officer of police on whose application the foreign travel order | |
was made; | |
(c) the chief officer of police for the area in which the defendant resides; | |
(d) a chief officer of police who believes that the defendant is in, or is | 10 |
intending to come to, his police area. | |
(3) Subject to subsection (4), 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 | |
discharging the foreign travel order, that the court considers appropriate. | 15 |
(4) 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 | |
children generally or any child from serious sexual harm from the defendant | |
outside the United Kingdom (and any renewed or varied order may contain | |
only such prohibitions as are necessary for this purpose). | 20 |
(5) In this section “the appropriate court” means— | |
(a) the court which made the foreign travel order; | |
(b) a magistrates’ court for the area in which the defendant resides; or | |
(c) where the application is made by a chief officer of police, any | |
magistrates’ court whose commission area includes any part of his | 25 |
police area. | |
119 Foreign travel orders: appeals | |
(1) A defendant may appeal to the Crown Court— | |
(a) against the making of a foreign travel order; | |
(b) against the making of an order under section 118, or the refusal to make | 30 |
such an order. | |
(2) On any such appeal, 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. | |
(3) Any order made by the Crown Court on an appeal under subsection (1)(a) | 35 |
(other than an order directing that an application be re-heard by a magistrates’ | |
court) is for the purposes of section 118(5) 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). | |
120 Appeals in relation to foreign travel orders: Scotland | 40 |
In Scotland— | |
(a) an interlocutor granting, refusing, varying, renewing or discharging a | |
foreign travel order is an appealable interlocutor; and | |
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(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. | |
121 Sections 114 to 118: Scotland | 5 |
(1) Sections 114 to 118 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; | |
(b) references to the defendant are to be read as references to the person in | 10 |
respect of whom the order is sought or has effect; | |
(c) an application for a foreign travel 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 court” being | |
construed accordingly); | 15 |
(d) for paragraphs (a) to (c) of section 118(5) there is substituted— | |
“(a) the sheriff who made the foreign travel order; or | |
(b) where the application is made by a chief constable, a | |
sheriff whose sheriffdom includes any part of the area of | |
the applicant’s police force.” | 20 |
(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 foreign travel | |
order is made, varied, renewed or discharged shall cause a copy of, as the case | |
may be— | 25 |
(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 | |
delivery of a copy so sent, issued by the Post Office, being sufficient evidence | 30 |
of the delivery of the copy on the day specified in the acknowledgement or | |
certificate). | |
122 Offence: breach of foreign travel order | |
(1) A person commits an offence if, without reasonable excuse, he does anything | |
which he is prohibited from doing by a foreign travel order. | 35 |
(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; | |
(b) on conviction on indictment, to imprisonment for a term not exceeding | |
5 years. | 40 |
(3) Where a person is convicted of an offence under this section, it is not open to | |
the court by or before which he is convicted to make, in respect of the offence, | |
an order for conditional discharge (or, in Scotland, a probation order). | |
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