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Risk of sexual harm orders | |
123 Risk of sexual harm orders: applications, grounds and effect | |
(1) A chief officer of police may by complaint to the magistrates’ court apply for | |
an order under this section (a “risk of sexual harm order”) in respect of a person | |
aged 18 or over (“the defendant”) who resides in his police area or who the | 5 |
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 has on at least two occasions, whether before or after the | |
commencement of this Part, done an act within subsection (3), and | |
(b) as a result of those acts, there is reasonable cause to believe that it is | 10 |
necessary for such an order to be made. | |
(2) An application under subsection (1) 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 defendant acted in a way | 15 |
mentioned in subsection (1)(a). | |
(3) The acts are— | |
(a) engaging in sexual activity involving a child or in the presence of a | |
child; | |
(b) causing or inciting a child to watch a person engaging in sexual activity | 20 |
or to look at a moving or still image that is sexual; | |
(c) giving a child anything that relates to sexual activity or contains a | |
reference to such activity; | |
(d) communicating with a child, where any part of the communication is | |
sexual. | 25 |
(4) On the application, the court may make a risk of sexual harm order if it is | |
satisfied that— | |
(a) the defendant has on at least two occasions, whether before or after the | |
commencement of this section, done an act within subsection (3); and | |
(b) it is necessary to make such an order, for the purpose of protecting | 30 |
children generally or any child from harm from the defendant. | |
(5) Such an order— | |
(a) prohibits the defendant from doing anything described in the order; | |
(b) has effect for a fixed period (not less than 2 years) specified in the order | |
or until further order. | 35 |
(6) The only prohibitions that may be imposed are those necessary for the purpose | |
of protecting children generally or any child from harm from the defendant. | |
(7) Where a court makes a risk of sexual harm 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. | 40 |
124 Section 123: interpretation | |
(1) Subsections (2) to (7) apply for the purposes of section 123. | |
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(2) “Protecting children generally or any child from harm from the defendant” | |
means protecting children generally or any child from physical or | |
psychological harm, caused by the defendant doing acts within section 123(3). | |
(3) “Child” means a person under 16. | |
(4) “Image” means an image produced by any means, whether of a real or | 5 |
imaginary subject. | |
(5) “Sexual activity” means an activity that a reasonable person would, in all the | |
circumstances but regardless of any person’s purpose, consider to be sexual. | |
(6) A communication is sexual if— | |
(a) any part of it relates to sexual activity, or | 10 |
(b) a reasonable person would, in all the circumstances but regardless of | |
any person’s purpose, consider that any part of the communication is | |
sexual. | |
(7) An image is sexual if— | |
(a) any part of it relates to sexual activity, or | 15 |
(b) a reasonable person would, in all the circumstances but regardless of | |
any person’s purpose, consider that any part of the image is sexual. | |
(8) In this section, as it applies to Northern Ireland, subsection (3) has effect with | |
the substitution of “17” for “16”. | |
125 RSHOs: variations, renewals and discharges | 20 |
(1) A person within subsection (2) may by complaint to the appropriate court | |
apply for an order varying, renewing or discharging a risk of sexual harm | |
order. | |
(2) The persons are— | |
(a) the defendant; | 25 |
(b) the chief officer of police on whose application the risk of sexual harm | |
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 | |
intending to come to, his police area. | 30 |
(3) Subject to subsections (4) and (5), 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 risk of sexual harm order, that the court considers appropriate. | |
(4) An order may be renewed, or varied so as to impose additional prohibitions on | 35 |
the defendant, only if it is necessary to do so for the purpose of protecting | |
children generally or any child from harm from the defendant (and any | |
renewed or varied order may contain only such prohibitions as are necessary | |
for this purpose). | |
(5) The court must not discharge an order before the end of 2 years beginning with | 40 |
the day on which the order was made, without the consent of the defendant | |
and— | |
(a) where the application is made by a chief officer of police, that chief | |
officer, or | |
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(b) in any other case, the chief officer of police for the area in which the | |
defendant resides. | |
(6) Section 124(2) applies for the purposes of this section. | |
(7) In this section “the appropriate court” means— | |
(a) the court which made the risk of sexual harm order; | 5 |
(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 | |
police area. | |
126 Interim RSHOs | 10 |
(1) This section applies where an application for a risk of sexual harm order (“the | |
main application”) has not been determined. | |
(2) An application for an order under this section (“an interim risk of sexual harm | |
order”)— | |
(a) may be made by the complaint by which the main application is made, | 15 |
or | |
(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 risk of sexual | 20 |
harm order, prohibiting the defendant from doing anything described in 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 | 25 |
of the main application. | |
(5) The applicant or the defendant may by complaint apply to the court that made | |
the interim risk of sexual harm order for the order to be varied, renewed or | |
discharged. | |
127 RSHOs and interim RSHOs: appeals | 30 |
(1) A defendant may appeal to the Crown Court— | |
(a) against the making of a risk of sexual harm order; | |
(b) against the making of an interim risk of sexual harm order; or | |
(c) against the making of an order under section 125, or the refusal to make | |
such an order. | 35 |
(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) or | |
(b) (other than an order directing that an application be re-heard by a | 40 |
magistrates’ court) is for the purpose of section 125(7) or 126(5) (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). | |
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128 Offence: breach of RSHO or interim RSHO | |
(1) A person commits an offence if, without reasonable excuse, he does anything | |
which he is prohibited from doing by— | |
(a) a risk of sexual harm order; or | |
(b) an interim risk of sexual harm order. | 5 |
(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. | 10 |
(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. | |
129 Effect of conviction etc. of an offence under section 128 | |
(1) This section applies to a person (“the defendant”) who— | 15 |
(a) is convicted of an offence under section 128; | |
(b) is found not guilty of such an offence by reason of insanity; | |
(c) is 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, is cautioned in respect of | 20 |
such an offence. | |
(2) Where — | |
(a) a defendant was a relevant offender immediately before this section | |
applied to him, and | |
(b) the defendant would (apart from this subsection) cease to be subject to | 25 |
the notification requirements of this Part while the relevant order (as | |
renewed from time to time) has effect, | |
the defendant remains subject to the notification requirements. | |
(3) Where the defendant was not a relevant offender immediately before this | |
section applied to him— | 30 |
(a) this section causes the defendant to become subject to the notification | |
requirements of this Part from the time the section first applies to him | |
until the relevant order (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 | 35 |
subsection (4). | |
(4) The “relevant date” is the date on which this section first applies to the | |
defendant. | |
(5) In this section “relevant order” means— | |
(a) where the conviction, finding or caution within subsection (1) is in | 40 |
respect of a breach of a risk of sexual harm order, that order; | |
(b) where the conviction, finding or caution within subsection (1) is in | |
respect of a breach of an interim risk of sexual harm order, any risk of | |
sexual harm order made on the hearing of the application to which the | |
interim risk of sexual harm order relates or, if no such order is made, | 45 |
the interim risk of sexual harm order. | |
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