With this, it will be convenient to discuss the following:
Government new clause 14—Sexual harm prevention orders and sexual risk orders, etc.
Government new clause 15—Saving and transitional provision.
New clause 5—Child sexual abuse prevention orders—
‘(1) The Sexual Offences Act 2003 is amended as follows.
(2) For sections 123 (Risk of sexual harm orders: applications, grounds and effect) to 129 (Effect of conviction etc. of an offence under section 128) substitute—
“123 Child Sexual Abuse Prevention Orders: Applications and grounds
(1) On the application of a qualifying person, or on conviction of a qualifying offence, a magistrates’ court may make a ‘child sexual abuse prevention order’ if it is satisfied that it is necessary to make such an order for the purposes of protecting children generally or any particular child from serious sexual harm from the defendant.
(2) A qualifying person under subsection (1) shall be a chief officer of police or an officer, of superintendant rank or above, in the NCA or other relevant agency to be decided by the Home Secretary.
(3) In subsection (1) a defendant shall be considered to be convicted of a qualifying offence who—
(a) is convicted of an offence listed in schedules 3 and 5;
(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;
(d) is cautioned in respect of such an offence;
“(1) A chief officer of police may apply for an order under this section in respect of a person who resides in his police area or who the chief officer believes is in, or is intending to come to, his police area.
(2) An application under subsection (1) may be made to a magistrates’ court whose commission area includes—
(a) any part of the police area, or
(b) any place where it is alleged that the defendant committed one or more offences listed in schedules 3 and 5.
Section 123: supplemental
‘(1) In this Part, ‘Child Sexual Abuse Prevention Order’ means an order under section 123.
(2) Subsections (3) and (4) apply for the purposes of Section 1.
(3) ‘Protecting children generally or any particular child from serious sexual harm from the defendant’ means protecting persons under 18 or any person under 18, in or outside the United Kingdom, from serious physical or psychological harm caused by the defendant committing one or more offences listed in Schedule 3.
(4) Acts, behaviour, convictions, and findings include those occurring before the commencement of this Part.
(5) In subsection (1)(1), a person shall also be considered to have been convicted of a qualifying offence if, under 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),
(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 charged against him in respect of the offence, or
(d) he has cautioned in respect of a relevant offence.
(6) In subsection (5), a ‘relevant offence’ means an act which—
(a) constituted an offence under the law in force in the country concerned, and
(b) would have consituted an offence within schedules 3 and 5 if it had been done in any part of the United Kingdom.
(7) 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 (6), however it is described in that law.
(8) Subject to subsection (9), on an applicatioin under section 1 the condition in subsection (6)(b) above (where relevant) is to be taken as met unless, not later than rules of the 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 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.
(9) The court, if it thinks fit, may permit the defendant to require the applicant to prove that the condition is met without the service of a notice under subsection (8).
Child-SAPOs: effect
‘(1) A Child Sexual Abuse Prevention Order—
(a) prohibits the defendant from doing anything described in the order, and
(b) has effect for a fixed period (not less than five 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 children generally or any particular child from serious sexual harm from the defendant.
(3) Where a court makes a child sexual abuse prevention 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.
(4) Section 3(3) applies for the purposes of this section and section 5.
Child-SAPOs: variations, renewals and discharges
‘(1) A person within subsections (2) may apply to the appropriate court for an order varying, renewing or discharging a child sexual abuse 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 intending to come on to, his police area;
(d) where an order was made on an application under section 1(1), the chief officer or other qualifying person 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 rules of the court;
(b) in any other case, by complaint.
(4) Subject to subsections (5) and (6), on the application of 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 child sexual abuse prevention order, that the court considers appropriate.
(5) An order may be renewed, or varied so as to impose additional prohibitions on or to lift prohibitions from the defendant, only if it is necessary to do so for the purposes of protecting children generally or any particular child from serious sexual harm from 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 five years beginning with 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 other qualifying person 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—
(a) where the Crown Court or the Court of Appeal made the child sexual abuse 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 whose commission area includes any part of the chief officers’ police area or any area where the alleged offences occurred.
(c) where a youth court made the order, that court, the youth court for the area in which the defendant resides or, where the application is made, any youth court whose commission area includes any part of a chief officer’s police area or any place where the alleged offences occurred.
(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 and Scotland),
(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), and
(d) as it applies to child sexual abuse prevention orders.
Interim Child-SAPOs
‘(1) This section applies where an application under section 123(1) (‘the main application’) has not been determined.
(2) An application for an order under this section (‘an interim child sexual abuse prevention order’)—
(a) may be made by the complaint by which the main application is made, 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 child sexual abuse prevention 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 of the main application.
(5) The applicant or the defendant may by complaint apply to the court that made the interim child sexual abuse prevention order for the order to be varied, renewed or discharged.
(6) Subsection (5) applies to orders under—
(a) Sections 2A or 20(4)(a) of the Crime and Disorder Act 1998 (c.37) (interim orders made in England and Wales 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 child sexual abuse prevention orders.
Child-SAPO and interim Child-SAPO appeals
‘(1) A defendant may appeal to the Crown Court against the making of a child sexual abuse prevention order under section 123(1).
(2) A defendant may appeal to the Crown Court aginst the making of an interim child sexual abuse prevention order under section 127(3).
(3) A defendant may appeal against the making of an order under section 127(3), 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;
(b) in any other case, to the Crown Court.
(4) On an appeal under section (1), (2) or subsection (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.
(5) Any order made by the Crown Court on an appeal under sections (1) or (2) (other than an order directing that an application be re-heard by a magistrates’ court) is for the purpose of subsecitons 126(7) and 127(6) (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).
Offence: breach of a Child-SAPO or interim Child-SAPO
‘(1) A person commits an offence if, without reasonable excuse, he does anything which he is prohibited from doing by—
(a) a child sexual abuse prevention order;
(b) an interim child sexual abuse prevention order,
(c) an order under section 5A of the Sex Offenders Act 1997 (c.51) (restraining orders);
(d) an offender under sections 2, 2A or 20 of the Crime and Disorder Act 1998 (c.37) (sex offenders orders and interim orders made in England and Wales and in Scotland);
(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 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for at term not exceeding five years.
(c) 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 disharge or, in Scotland, a probation order.
(3) The Home Secretary shall issue guidance on the use of child sexual abuse prevention orders and interim child sexual abuse prevention orders within six months of this section coming into force.”.’.
New clause 7—Possession of prohibited written material about children—
‘(1) Section 62 of the Coroners and Justice Act 2009 (offence of possession of prohibited images of children) is amended as follows.
(2) In subsection (1), after “prohibited image of a child” insert “or prohibited written material about a child”.
(3) After subsection (2) insert—
“(2A) Prohibited written material about a child is written material which—
(a) is pornographic,
(b) falls within subsection (6), and
(c) is grossly offensive, disgusting or otherwise of an obscene character.”
(4) In subsection (3), after “image” insert “or written material”.
(5) After subsection (5) insert—
“(5A) Where (as found in the person’s possession) written material forms part of a series of written material, the question whether the written material is of such a nature as is mentioned in subsection (2A) is to be determined by reference to—
(a) the written material itself, and
(b) (if the series of written material is such as to be capable of providing a context for the written material) the context in which it occurs in the series of written material.
(5B) So, for example, where—
(a) written material forms an integral part of a narrative constituted by a series of written material, and
(b) having regard to those written materials as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal,
the written material may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.”
(6) In subsection (6), insert “or written material” after the word “image” each time it appears.’.
Government new schedule 1—Amendments of Part 2 of the Sexual Offences Act 2003.
Government amendments 63 and 92 to 94.