|Sexual Offences Bill [HL] - continued||House of Lords|
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Clause 84: The notification period
69. Clause 84 sets out how long a relevant offender will be subject to the notification requirements. In the most serious cases, as reflected in the sentence passed for the offence, the person will be subject to the requirements for an indefinite period, which means the rest of his life. In less serious cases, the offender will be subject to the requirements for a fixed period. For example, where a person is cautioned for a relevant offence, the notification period is two years. The notification period starts from the date of conviction, finding or caution. This is called the 'relevant date' (subsection (6)). Subsection (2) provides that, where an adult would be subject to the notification requirements for a determinate period (that is ten, seven, five or two years), that period will be halved in the case of an offender who is under 18 on the relevant date (that is, the date of conviction, relevant finding or reprimand or final warning.) Subsections (3) and (4) set out how to calculate the notification period where an offender is sentenced for more than one Schedule 2 offence and these sentences are terms of imprisonment running consecutively or partly concurrently. Where the terms are consecutive, they are to be added together. For example, where an offender is sentenced to 3 months' imprisonment for one relevant offence and 10 months' imprisonment for another such offence, to run consecutively, the sentence would be treated as 13 months' imprisonment for the purposes of working out the notification period (in this case, 10 years). Terms will be partly concurrent when they are imposed on different occasions. An example would be where an offender is sentenced to 10 years' imprisonment for a schedule 2 offence, and 6 years into this term he is sentenced to 12 years' imprisonment for a second schedule 2 offence. Where this is the case, the notification period is based on the combined length of the terms minus any overlapping period. In the example given, the combined length of the sentences would be 22 years and the overlapping period would be the remaining 4 years of the 10-year sentence. So the sentence for the purposes of working out the notification period would be 18 years. Subsection (5) relates to the situation where there is an initial finding that a person is under a disability and has done the act charged and he is later tried for the offence. An example would be where such a finding was made, the person was admitted to hospital under a restriction order and the notification requirements would therefore apply for an indefinite period. Where such a person was subsequently tried for the offence, the indefinite notification period will cease to apply as from the end of the trial. If the person is convicted and sentenced to, say, 12 months' imprisonment for the offence, the new notification period would be 10 years, starting from the date of the conviction. If the person is acquitted at trial, the person ceases to be subject to the notification requirements in respect of that matter.
Clause 85: Notification requirements: initial notification
70. Clause 85 sets out the information the offender needs to supply to the police when he first makes a notification and the time scales within which he is required to provide that information. Subsection (2) relates to a case where someone is already subject to the notification requirements by virtue of a conviction etc. for a schedule 2 offence or court order and has complied with subsection (1), at the time he is convicted etc. of a further Schedule 2 offence or made subject to a court order which imposes the notification requirements (for example a sexual offences prevention order or notification order). A person in this situation does not need to notify his details again in accordance with subsection (1) in respect of that further conviction. This is only the case, however, where the notification period in respect of the original conviction etc. lasts for the period specified at subsection (1) (as extended in accordance with subsection (6) - see below - if appropriate). Subsection (4) makes similar provision in respect of persons who are already subject to the notification requirements at the time a notification order is made. Subsection (3) provides that the obligation imposed by subsection (1) does not apply to a person who, on commencement, was already subject to the notification requirements by virtue of the 1997 Act and has complied with the obligation to notify his name and address to the police under section 2(1) of the 1997 Act. Where a person subject to the requirements of the 1997 Act has not complied with section 2(1) of that Act, he must, under subsection (1) of clause 85, notify the police of the details in subsection (5) within 3 days of commencement of Part 2 of the Bill. The details in subsection (5) include the offender's home address. The term 'home address' is defined in subsection (7). This provides that where an offender is homeless or has no fixed abode his 'home address' means an address or location where he can be regularly found. This might, for example, be a shelter, a friend's house, a caravan or a park bench. In calculating the time limits within which an offender must give notification under subsection (1), the periods specified in subsection (6) do not count. This means, for example, that an offender who is immediately taken into custody following a conviction for an offence triggering the notification requirements, need not notify the police of the details in subsection (5) of clause 85 within 3 days of that conviction. Instead, the requirement will be to notify his details within 3 days of his release.
Clause 86: Notification requirements: changes
71. Clause 86 sets out the requirements on a relevant offender to notify the police of changes to notified details. Under subsection (1)(c) an offender must notify the police within 3 days, of the address of any premises he has stayed at within the UK, besides his home address, for a 'qualifying period'. This might be a friend or relative's house or a hotel where he has stayed. A qualifying period is defined at subsection (6). Subsection (2) allows an offender to notify the police of any change to his notified details (his name, address or having stayed away from home for 7 or more days) in advance of such change. The notification must give a date when the change is expected to occur. Subsections (3) and (4) deal with the scenario in which the change does not take place as notified in advance. As long as the change takes place within a 3-day margin of the date notified, the offender need not update the police as to the actual date on which the change took place. However, where the change takes place outside that 3-day margin, the person must notify the change in accordance with subsection (1), that is, within 3 days of the actual change. And, where the change takes place 3 days or more after the date specified, the person must also notify the police (within 6 days of the date specified) that the information he notified in advance is no longer correct. The effect of subsection (5) is that, while an offender is in custody, detained or abroad (as provided at subsection (6) of clause 85), he will not be required to notify the police of any change of name or address or having stayed away for 7 days or more. The 3-day time limit will be suspended for the duration of the detention or period abroad and will apply from the end of that period.
Clause 87: Notification requirements: periodic notification
72. Clause 87 provides that an offender must re-notify the police of the details set out in subsection (5) of clause 85 within one year of the last time he was required to notify or, (for the first year only) if later, commencement and annually thereafter on a rolling basis. Commencement will only be a trigger for this periodic notification requirement where a person is exempt from complying with subsection (1) of clause 85 by reason of subsections (2), (3) or (4) of clause 85 (where the person has complied with an earlier initial notification requirement). This means that where a person becomes subject to the notification requirements for the first time and does not change his name or address and does not stay away from home for 7 days or more, he will have to re-notify within a year of his initial notification and annually thereafter. Where a person does notify his having stayed away from home for 7 days, for example, he will have to re-notify within a year of giving that notification. And, if within that year he notifies another period spent away from home, or a change of name or address, the re-notification will be put back to a year after that latter notification. Subsection (2) provides that where a relevant offender is detained or abroad in the ways provided at subsection (3) at the time the periodic notification requirement falls due, the person may give that notification up to 3 days after he is released from the detention or returns to the UK.
Clause 88: Notification requirements: travel outside the United Kingdom
73. Subsection (1) of clause 88 provides a power for the Secretary of State to make regulations setting out notification requirements for relevant offenders who leave the UK or any description of such offenders (for example those intending to leave the UK for a specified period). The regulations would oblige such persons to notify certain details concerning their travel plans to the police. Subsection (4) might be used for example to make provision for offenders who have details of their travel arrangements a certain period in advance of their intended departure date to notify additional information, or to provide that certain categories of offender must notify shorter periods of foreign travel than others. These regulations are subject to the affirmative resolution procedure (clause 123(2)). For Scotland, the regulations will be made by Scottish Ministers and laid before the Scottish Parliament.
Clause 89: Method of notification and related matters
74. Clause 89 describes how and where an offender is required to notify information to the police under the clauses relating to initial notification, change of details and periodic notification. It provides a power for the Secretary of State to make regulations specifying the police stations at which an offender may notify the police of the relevant information. The regulations will prescribe one or more police stations for each police area and where more than one has been prescribed for a particular offender's area, that offender may notify at any one of them. The term 'local police area' is defined in subsection (3) of clause 90. Where the notification relates to having stayed away from a home address for 7 days or more or to a prospective change of address, the offender may use a police station within the police area of that other address (subsection (2)). When making a notification, other than a notification of foreign travel, the police may take the person's fingerprints and/or photograph (subsection (4)). The term "photograph" is explained at subsection (2) of clause 90 and, because subsection (4)(b) refers to a photograph of any part of the person, it will include an iris scan.
Clause 90: Section 89: interpretation
75. Subsection (3) of clause 90 defines "local police area". Subsection 3(b) and (c) deal with cases where the offender has no home address (as defined in subsection (7) of clause 85). He may have no home address because for example he spends most of his time abroad and only returns to the UK occasionally, or because he is itinerant.
Clause 91: Young offenders: parental directions
76. Clause 91 provides that, in the case of young offenders, the court may direct a person with parental responsibility for the offender to comply with the notification requirements in place of the offender until either the offender attains the relevant age (18 in England; 16 in Scotland) or until a date before that specified by the court. The court may make the direction at the time it deals with the offender in respect of a conviction or finding which triggers the notification requirements or when it makes an order which imposes those requirements. Subsection (4) also allows the police to apply to the court for a parental direction to be made. This will cover cases where the court, for whatever reason, did not make a direction at the stage referred to above but an order now seems appropriate. It will also cover cases where the young offender has received a reprimand or final warning for a Schedule 2 offence. In Scotland, the power for the police to apply to the court for a parental direction to be made will apply only in the case of notification orders and interim notification orders.
Clause 92: Parental directions: variations, renewals and discharges
77. Clause 92 provides that a court may vary, renew or discharge a parental direction. This may be required where, for example, there is a direction that the father notifies on behalf of the young offender and the father subsequently becomes divorced from the mother and the offender goes to live with the mother. An order may need to be discharged where, for example, the parent can no longer control the young offender and is unable to ensure that he attends with the parent to notify. In these circumstances the police may consider that the liability for his failure to attend should revert to the young offender himself. In Scotland, the power for the persons specified in these clauses to apply to the court for variation and discharge etc. of a direction will apply only in the case of directions that are made for notification orders or interim notification orders.
Clause 93: Offences relating to notification
78. Subsection (3) enables a prosecution to be brought at a later date than would otherwise be the case if the offence was only committed on the first day of breach. An offender cannot be prosecuted more than once for the same failure. However, if an offender fails to comply with a requirement, is convicted for this offence and then fails to comply again in respect of the same provision, he commits a new offence and may be prosecuted again. Where the offences in this clause refer to a 'reasonable excuse', this might be, for example, where an offender does not provide the information in the required time scale because he is in hospital following an accident. In respect of an offence relating to subsection 2(b) of clause 91 a reasonable excuse might be that the parent took all reasonable steps to persuade the young offender to accompany him to the police station.
Clause 94: Certificates for the purposes of Part 2
79. Clause 94 provides that when a court convicts or makes a relevant finding in respect of a person in relation to a Schedule 2 offence, or when a person is cautioned by the police, the court or police officer may issue a certificate that will be evidence of the conviction etc. or caution for a relevant offence and of the notification requirements which follow from it. Subsection (4) provides a power for the Secretary of State to prescribe by order the form of caution to be given. These regulations will be subject to the negative resolution procedure (clause 123(3)). For Scotland, the regulations will be made by Scottish Ministers and laid before the Scottish Parliament.
Clause 95: Information about release or transfer
80. Clause 95 allows the Secretary of State to make regulations requiring those who are responsible for an offender while he is in detention (as defined in subsection (1)) to notify other relevant authorities of his release or transfer to another institution. The regulations may define the person responsible for the offender (for example, the Chief Executive of a hospital) and the person who must be informed about release and transfer. An example might be that the governor of a prison is required to inform the local chief officer of police when a relevant offender is about to be released from his prison. These regulations will be subject to the negative resolution procedure (clause 123(3)). For Scotland, the regulations will be made by Scottish Ministers and laid before the Scottish Parliament.
Clause 96: Notification orders: applications and grounds
81. Clause 96 provides a power for the police to apply to the magistrates' court for an order making an offender who has been convicted, cautioned or had a relevant finding made against him, in respect of a "relevant offence" (defined in subsection (1) of clause 98) abroad, subject to the notification requirements. The chief officer of police may apply for an order if he believes that the person is currently in or is intending to come to his police area. The "intending to come to" limb will cover for example a person who is in France but who the chief officer of Kent believes has plans to arrive at Dover within the next few days. A notification order might, for example, be sought in respect of a UK citizen who has been convicted of a sexual offence overseas and who is deported to the UK on release from prison abroad. The police could also apply for a notification order in respect of a foreign citizen who the police know has been convicted for a sex offence in his or her own country and who comes to the UK. The provisions in subsection (3) reflect the partially retrospective arrangements that apply in respect of the application of the notification requirements to people with convictions etc. in the UK (see clause 83). The relevant conviction, finding or caution abroad must have taken place on or after 1 September 1997, which was the commencement date for the 1997 Act. Findings or convictions that occurred before that date will only be a trigger for a notification order where the person had yet to be dealt with on 1 September 1997 or was still serving a sentence or was subject to supervision or otherwise detained in respect of that offence on that date. The effect of subsection (4) is that an order may not be made where the notification period (the period for which an offender is to be subject to the notification requirements), calculated from the date of conviction etc. abroad, has expired. So where, for example, a person is cautioned abroad for a relevant offence (the notification period for a caution is 2 years), the court may not make a notification order against that person if he comes to the UK 2 years or more after receiving the caution.
Clause 97: Notification orders: effect
82. Clause 97 provides that where an order is made, the offender will become subject to the notification requirements for the period set out in clause 84 that applies to the sentence he received abroad. This period will run from the date of conviction etc. abroad. So for example, if a person was convicted abroad of an offence equivalent to the domestic offence of sexual assault and sentenced to 6 months' imprisonment, the notification period for a sentence of 6 months would be 7 years. If the offender did not come to the UK until 5 years after the conviction, the notification requirements imposed under a notification order would only last for the remaining 2 years of the 7 since the date of conviction. The provisions of subsection (3) modify the notification provisions as they apply to people subject to notification orders. The effect of subsection (4) is that for people subject to notification orders, the initial obligation to provide details to the police will be within 3 days of the date of service of the order, and (subject to the other provisions in clause 87 relating to annual notification) annually thereafter.
Clause 98: Sections 96 and 97: relevant offences
83. A relevant offence for the purposes of a notification order is an act constituting an offence abroad which would also have amounted to one of the offences set out in Schedule 2 had it been committed in the UK. The defendant may require the police to show that his offence would have constituted an offence in Schedule 2 in the UK. Otherwise, this is deemed to be accepted.
Clause 99: Interim notification orders
84. Clause 99 allows the police to apply for an interim notification order pending the application for a main order being heard. This may be, for example, because papers need to be obtained from the foreign country before the main application can be determined. Subsections (5) and (6) provide that the offender will be subject to the notification requirements during the period of the order, with the notification period starting from the date of service of the order, as opposed to the date of the conviction etc. This means, for example, that the defendant will have to comply with the initial notification requirement (at clause 85(1)) within 3 days of the service of the order.
Clause 100: Notification orders and interim notification orders: appeals
85. Clause 100 allows the offender to appeal to the Crown Court against the making of an interim or full order.
Clause 101: Appeals: Scotland
86. Clause 101 allows the offender to appeal against the making of an interim or full order in accordance with normal civil procedures. It also makes clear that where an appeal has been taken against an interlocutor any order can continue to have effect pending the appeal.
Clause 102: Sections 96 to 99: Scotland
87. Clause 102 applies the notification order power to Scotland, subject to certain modifications. The procedure for the notification order is mirrored on the existing procedure for sex offender orders so these modifications ensure that the procedure is consistent with this and Scottish civil procedure. Similar to sex offender orders, the police will apply for a notification order by summary application and a record of evidence is required to be kept by the clerk.
Clause 103: Sexual offences prevention orders: applications and grounds
88. Clause 103 explains the circumstances in which a sexual offences prevention order may be made against an offender. Sexual offences prevention orders are civil preventative orders designed to protect the public from serious sexual harm. These orders replace and amend restraining orders and sex offender orders (provisions in relation to which are found at section 5A of the 1997 Act and sections 2 to 4 of the 1998 Act respectively). Broadly, a sexual offences prevention order may be made by a court on conviction etc. for an offence listed in Schedules 2 or 3, or following an application by the police in respect of a person with such a conviction etc. living in the community. The offences in Schedule 2 are all sexual offences, some of which are subject to thresholds in relation to age and sentence, below which the offence will not trigger a sexual offences prevention order. The offences relating to England and Wales and to Northern Ireland in Schedule 3 are violent offences and various offences under this Bill relating to trafficking and prostitution and child pornography. The lists of offences relating to England and Wales and Northern Ireland include murder as well as all the offences in Schedule 11 of the Criminal Justice Bill, which relates to the provisions in that Bill dealing with "dangerous offenders". In addition, the courts will have power to apply for the order in respect of persons convicted in Scotland of an offence inferring personal violence. Clause 103 provides that a court may make an order when it deals with an offender for a conviction or relevant finding in respect of an offence listed in Schedules 2 and 3 where it is satisfied that it is necessary to make such an order for the purpose of "protecting the public in the United Kingdom or any particular members to the public from serious sexual harm from the defendant". This phrase is defined in subsection (2) of clause 104. The court may be satisfied of this necessity either by the circumstances of the offence or from other evidence of the defendant's behaviour. Clause 103 also provides that a chief officer of police may make an application to the Magistrates' Court for a sexual offences prevention order in respect of an offender in the community, who he believes is in or is intending to come to his police area. The court may make such an order if it is satisfied that the person is a 'qualifying offender' as defined in clause 104(4) and that the defendant's behaviour since his first relevant conviction etc. makes an order necessary. The date after which the behaviour is to have occurred is referred to in subsections (1)(a) and (5)(b) as 'the appropriate date'. This is defined in subsection (5) of clause 104. It refers to the first date on which the relevant conviction etc. took place, so that, where the person has a conviction for more than one offence in Schedules 2 or 3, the police may rely on evidence of behaviour that took place any time after the first of those convictions. An example of when the police might apply for a sexual offences prevention order is as follows. An offender has a conviction for sexual activity with a child and has been released after his term of imprisonment. Following his release he behaves in a way that suggests he is likely to offend again, for example by loitering around schools or inviting children back to his house. An application for a sexual offences prevention order is to be made by complaint. This is a civil procedure and the relevant procedure is set out at sections 51 to 57 of the Magistrates' Courts Act 1980.
Clause 104: Section 103: supplemental
89. Subsection (4) defines the term 'qualifying offender' which applies in relation to orders made against offenders living in the community. This includes those who have been punished for an offence overseas that is equivalent to one of the offences in Schedules 2 or 3.
Clause 105: Sexual offences prevention orders: effect
90. Subsection (1) of clause 105 explains what an order does and for how long it lasts. An order may prohibit the offender from doing anything specified in it. Subsection (2) provides that the prohibitions contained within an order must be necessary to protect the public or any particular members of the public from serious sexual harm from the defendant. This phrase is defined in clause 104(2). Prohibitions could include, for example, preventing an offender from contacting his victims or from taking part in sporting activities that involve close contact with children or from living in a household with girls under 16. The order must last for a minimum period of five years (subsection 1(b)). The period must be specified in the order but it may be an indefinite period and the period specified will not prevent a further order being made. However, subsection (6) operates to ensure an offender cannot be subject to more than one sexual offences prevention order at any one time. Subsection (3) provides that where an order is made against an offender who is already subject to the notification requirements but the notification period would end during the currency of the order, he is to remain subject to the notification requirements for the duration of the order. If the notification period attaching to a relevant conviction etc. lasts for longer than the order, the offender will remain subject to the notification requirements for that longer period. Subsection (4) provides that where the offender is not subject to the notification requirements at the time an order is made, he will become subject to the notification requirements for the duration of the order. The effect of subsection (5) is that the notification period runs from the date of service of the order (not the date of conviction etc.). This means, for example, that the defendant will have to comply with the initial notification requirement (at clause 85(1)) within 3 days of the service of the order.
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