Anti-social Behaviour, Crime and Policing Bill Debate
Full Debate: Read Full DebatePaul Beresford
Main Page: Paul Beresford (Conservative - Mole Valley)Department Debates - View all Paul Beresford's debates with the Ministry of Justice
(10 years, 10 months ago)
Commons ChamberThe new clauses and amendments have been tabled by the Government and the hon. Member for Oxford West and Abingdon and they are best able to comment on that. My understanding of them is that a term of imprisonment of up to five years is applicable if an order is breached. I am asking a genuine question about whether what we want to achieve through the orders will be achieved by having a criminal standard for a civil order. The hon. Gentleman might want to take that up with the Minister when he responds.
I am conscious of time and of the fact that many other hon. Members want to speak so I will raise only a couple of other issues. Will the Minister explain the situation on appeals and rights of review that might be open to people who are put on the orders? With the scrapping of indeterminate sentences, might we have people on the street subject to the orders who in the past might well have remained in prison, and is the Minister satisfied with that situation?
The hon. Member for Mole Valley raises an important issue in new clause 7. It is topical given that at the weekend W. H. Smith had to withdraw information and e-books from its website. It has taken too long to obtain acceptance of the fact that viewing child abuse images is an integral part of the abuse process. Only the abusers deny that now. We know that viewing abuse often triggers behaviours in individuals. We know that Stuart Hazel and Mark Bridger had both been viewing legal pornography simulating violent sex and abuse prior to committing appalling crimes. The new clause, which deals with the written form of that abuse, is worth looking at. I hope that the Minister will comment further on that. We need to be careful, because we do not want genuine literature that describes abuse in a totally acceptable way to be captured.
If the hon. Lady looks at the new clause, she will see that the second half covers that point, so “Lolita”, for example, would be all right.
I am grateful to the hon. Gentleman for that clarification. I hope that the Minister will be able to confirm when he responds that that is the legal advice he has received. On that basis, it is really important that the issue is addressed.
Finally, if the provisions set out in new clause 7 are introduced, the Child Exploitation and Online Protection Centre, which is now part of the National Crime Agency, will have more work to do. It already struggles with the images it has to look at, so if it will have to deal with the written word as well. I think that there is a case to be made for the Minister addressing how resources for that will be made available.
May I begin by apologising to the hon. Member for Oxford West and Abingdon (Nicola Blackwood) for not being present for the start of her speech?
I want to contribute briefly to the debate in order to congratulate the hon. Lady on the incredibly effective work she has done on the issue of grooming. She has a constituency interest, of course, as Operation Bullfinch was going on in Oxford and she has been monitoring what has been happening to the victims, but she was also instrumental in beginning the important Childhood Lost campaign, and I was present at its launch with the Minister, who gave a very effective speech. She has decided not to press her amendment to a Division, but instead has urged the House to support what the Government are doing. I am glad that the Government are following the recommendations of the Select Committee. I think all in the House who are concerned about the grooming of children and the crimes being committed against young people and children will want to see effective action being taken. What we have seen in some of the criminal cases is just the tip of the iceberg, and the hon. Member for Keighley (Kris Hopkins), who has now been promoted to Minister in the Department for Communities and Local Government, gave very passionate and effective evidence to the Select Committee.
I support what the hon. Lady has said, I commend her on her marvellous efforts in this area, and I certainly hope the Government will continue to take forward the recommendations of the Select Committee—I see that the hon. Members for Cambridge (Dr Huppert) and for Rochester and Strood (Mark Reckless), who serve on the Committee, are present. We will revisit our recommendations six months after publication of the report, which will be at about Christmas time, when we will see what progress has been made, but I know that in the Minister we have someone who is determined to do something very serious and radical about stopping those who seek to exploit children, and I fully support what the hon. Lady has said.
I echo those congratulations. One thing I have discovered in this House is that it is possible for Back Benchers with a really good cause to push it and persuade a Government—whatever Government. The other thing to be said about this evening’s debate, at least until 7 o’clock, is that there is cross-House agreement —and, I hasten to add to the Opposition Front Bench, even the Liberal party is on board—and that has been the case on this area for some considerable time.
The Sexual Offences Act 2003 is the legislation being changed tonight. Although the Act came in under a Labour Government, I am sure the right hon. Member for Wythenshawe and Sale East (Paul Goggins), who was a Minister at about that time, would agree that there was huge cross-party support and thinking behind the scenes. Indeed, I was on the Home Office taskforce that did a lot of the work leading up to the child protection part of that Act.
Tonight, however, I want to focus on my new clause 7, which would amend section 62 of the Coroners and Justice Act 2009, entitled “Possession of prohibited images of children”. Those prohibited images are pornographic images, and they may take various forms, including photographs, pseudo-photographs, cartoons and computer-generated images. They may be moving or still, too. The link between the possession and the viewing and actual action against children is generally accepted, as the hon. Member for Kingston upon Hull North (Diana Johnson) said from the Opposition Front Bench.
The ludicrous situation is that an individual will be liable for prosecution for possession of photographs, pseudo-photographs, computer-generated images and so on, but not for the written word describing child sex abuse in pornographic, and often lurid, detail. All, including the written word in this form, are designed by the individuals concerned for sexual stimulation over the sexual abuse of children. If an individual wrote from his or her imagination a graphic description of child sexual abuse—which could, and often is, more emotive and more graphic than any picture of any form—even if he or she described one of those pictures or cartoons, that individual could not be prosecuted for the possession of this graphic material, even though for many of these individuals the written word is more powerful.
Let me give a simple example that I gave in speaking to my ten-minute rule Bill last Wednesday. CEOP provided me with the details of a man from Kent who wrote describing his wish to kidnap an early-teenage girl, strip her, sexually abuse her in an exceptionally unpleasant way and then, in an even more unpleasant way which I will not detail, slowly kill this girl. It is horrific, especially as his writings then inspired this individual to actually carry it out. He is in prison, hopefully for a very long time if not for ever, but the teenager is gone. One would have thought that the early discovery of the writings could have helped, but if the police had found them they would have had no power to act. This new clause has developed out of discussions with members past and present of the Metropolitan police paedophile unit and with the team leading CEOP in this area, and is supported by it, including Peter Davies.
CEOP last year published a research document on paedophile cases. It is mentioned in the report, almost as a sideline, that some offenders possess graphic notes or writings of child abuse. The Home Secretary has written to me on this matter stating she is asking for a report from CEOP on the need for this change. As the Minister will recall, some months ago both CEOP and the head of the Metropolitan police paedophile unit joined me in making a presentation to him. They brought some of the literature; I did not. The officers supported the need for this change. They explained that they had seen volumes of material in their search for illegal child abuse photographs. As the possession of such written material is not illegal, they obviously disregarded it, seeking only, at high speed and using computer technology, child abuse images.
The hon. Gentleman is clearly talking about some horrific material, and I am listening carefully to his case. He is far more expert in this area than I am. How does this link in with the Obscene Publications Act 1959? Does not that provide some protection in this area?
No, it does not. I am looking at changes to the Coroners and Justice Act 2009, not to the Obscene Publications Act. Otherwise I would wander into deep mire, which I am sure that Liberal Members would help me wallow in further.
The Obscene Publications Act was very much on my mind as well. Very often this material is generated by the offenders themselves and is privately retained, so I think it would fall foul of some of the definitions in that rather elderly piece of legislation. The material that is obtained can sometimes be used as incriminating evidence to help prove the general character and intent of individuals with an interest in child abuse, who are sadly far too prevalent. Do the police find difficulty in using that material as incriminating evidence, or do they want more information?
My hon. Friend goes halfway towards putting the case. He is right, but the police tell me that they do not really use that Act. They need this one tiny change in the legislation to add to the opportunities for prosecution and to use when they bring these individuals to court.
I was told that I needed to tweak the wording, so I did something absolutely outrageous: I invited the Attorney-General for a cup of coffee, not even a glass of wine, and he ran a cursory glance, if Attorney-Generals run cursory glances over anything, at the wording and seemed to feel that it was satisfactory. I am not going to hold him to that, as it would probably cost me a glass of wine.
The hon. Gentleman has given the House a valuable insight into how, for at least 10 years, he has followed these issues through with successive Ministers and very persuasively engaged them in the merits of his argument. I would be very happy to support his new clause, because graphic and extreme written material about child abuse is every bit as abusive as an image of child abuse. He is absolutely right to try to ensure that this loophole in the law is closed so that this is a very clear and separate offence.
I thank the right hon. Gentleman. I am delighted to have his support. When he was a Minister he was receptive to many of the changes that I suggested. He tweaked them so that they went through to another place without my name attached, but the effect was still the same.
Some have questioned whether genuine, legitimate literature such as “Lolita” would be covered by section 62(5) of the 2009 Act. To be completely clear, the written material that I am targeting can be as shocking as images described as level 5 based on the classification used by the courts. The section refers to prohibited images that it describes as
“pornographic…grossly offensive, disgusting or otherwise…obscene”
and
“of such a nature that it must be reasonably assumed to have been produced solely or principally for the purpose of sexual arousal.”
In certain cases, that description, which is applied to photographs, can, as the right hon. Member for Wythenshawe and Sale East (Paul Goggins) said, be applied equally to the written word. Such material is quite different and it is horrific. Its distribution is prohibited, and so should be its possession.
I strongly support the remarks of and the campaign by my friend, the hon. Member for Oxford West and Abingdon (Nicola Blackwood). Her initiative and that of the Childhood Lost campaign, which I have strongly supported, will be especially warmly welcomed by my constituents and hers, who are horrified at what was uncovered by the Operation Bullfinch investigation and prosecutions in Oxford. They are very worried that it was not possible to stop these crimes happening earlier and that even now there are people it has not been possible to bring to justice before the courts because of the difficulty in giving evidence. Anything that can be a step forward in stopping these horrific crimes must be greatly welcomed.
I want to underline an enormously important point that the hon. Lady made about the strength and clarity of guidance that is given on the use of these orders and the importance of each local area having the wherewithal to carry them into effect. In the wake of Operation Bullfinch, in Oxford we have had established the Kingfisher unit, which she and I jointly visited. It brings together all the relevant agencies and undertakes preventive and educational work as well as helping to bring cases to justice. We need such units in every part of the country. There has to be the strongest guidance to ensure that these orders are going to be used. I look forward to an assurance from the Minister that there will be close reporting and monitoring on the extent and areas of their use so that this House can see the progress that we all very much hope the bringing into law of these orders will represent.
That is a valid point. To deal with the practical point, once an order is made, the supervision of it will be in the hands of the local police. It is sensible for them to be on the front line of making any application to vary the order. Obviously, the NCA will make it a habit to work closely with local forces when they are working together in specific areas, as they will be in this case. It should become entirely habitual for the NCA to pass evidence to local forces. I know that the leadership of the NCA is determined to do that. There needs to be better connections between policing at the national and local levels, and we are seeking to address that problem. My hon. Friend should rest assured that she is not the only person who will be watching closely to ensure that that co-operation takes place.
As my hon. Friend the Member for Mole Valley (Sir Paul Beresford) explained, new clause 7 seeks to extend the offence of possessing a prohibited image of a child in section 62 of the Coroners and Justice Act 2009. That offence is committed when a person possesses a pornographic non-photographic image of a child that is grossly offensive, disgusting or otherwise obscene. My hon. Friend, together with the right hon. Member for Wythenshawe and Sale East (Paul Goggins), wants to extend that offence to include the written word. I add my thanks to the many that have been given this evening to both Members for their personal efforts in the fight to protect children from abuse. Their motivation for the new clause is entirely laudable, and it is quite right for the House to have the opportunity to discuss it.
Written material that describes the sexual abuse of children is undoubtedly distasteful and disturbing. As my hon. Friend said, he and I have had many discussions and meetings on the matter, and I put it to him that criminalising the possession of the written word in any context is a significant step, and we should pause before taking it. In our view, it is a step that should be taken only once we know the full extent of the problem. In this case, there are two particular requirements. First, there must be evidence that possession of such material is causing harm to children. Secondly, it must be practical for the police—in this case CEOP—to go through all the material on people’s computers. It is much more difficult to do that with the written word than with images. As my hon. Friend said, there is special technology that allows speedy checks of images. We are working on improving that technology, but it is more difficult in the case of the written word. If, after considering those caveats, we conclude that there is a case for changing the law, we will need to ensure that we go about it in the right way so that it has some practical effect and improves child protection.
New clause 7 touches on a number of sensitive issues, and any changes that we bring about need to be both proportionate and effective. I cannot commend it to the House today, but I absolutely assure my hon. Friend and the right hon. Gentleman that we intend to continue considering thoroughly whether the law should be changed in the way that they suggest. As my hon. Friend said, CEOP has already provided some information, and my officials continue to work with it to investigate the issue further and get the full body of evidence that is necessary if we are to take the drastic step suggested. As soon as we reach a conclusion on that, we will decide what action to take. I know that my hon. Friend will continue to play a role in gathering evidence and discussing it with Ministers, but I hope that he will agree not to press new clause 7 to a Division.
I congratulate my hon. Friend the Member for Oxford West and Abingdon on her commitment and her drive to ensure that we have the necessary powers to protect children from sexual harm. I now know that she and the House agree that the Government amendments will deliver what new clause 5 was intended to achieve, and more, so I commend them to the House.
No, you do not get another opportunity to speak, Sir Paul, but I assume that you do not wish to press new clause 7.
Thank you. Maybe next time it would be helpful to make a point of order.
Question put and agreed to.
New clause 8 accordingly read a Second time, and added to the Bill.
New Clause 14
Sexual harm prevention orders and sexual risk orders, etc
‘(1) Schedule [Amendments of Part 2 of the Sexual Offences Act 2003] (amendments of Part 2 of the Sexual Offences Act 2003) has effect.
(2) In section 142 of the Sexual Offences Act 2003 (extent etc)—
(a) in subsection (2) (provisions that extend to Northern Ireland, as well as England and Wales), for paragraph (c) there is substituted—
“(c) sections 80 to 88, 89 to 91, 92 to 96, 96B to 103, 122F and 130 to 136ZB;
(ca) Part 2A;”;
(b) after that subsection there is inserted—
“(2A) Sections 110, 117A, 119 and 123 to 129 extend only to Northern Ireland.”
(c) In subsection (3) (provisions that extend to Scotland, as well as England and Wales) for paragraph (a) there is substituted—after that subsection there is inserted—
“(a) sections 80 to 88, 89 to 91, 92, 94 to 96, 97 to 103, 122F, 130 to 132 and 133 to 136ZB;”;
“(3A) Sections 88A to 88I, 96A, 111A, 117B, 120 and 121 extend only to Scotland.
(3B) Sections 104 to 109, 111, 112 to 117, 118 and 122 extend to Northern Ireland and Scotland but not to England and Wales.”’.—(Damian Green.)
Brought up, read the First and Second time, and added to the Bill.
New Clause 15
Saving and transitional provision
‘(1) In this section—
“the 2003 Act” means the Sexual Offences Act 2003;
“existing order” means—
(a) a sexual offences prevention order under section 104 of the 2003 Act;
(b) a foreign travel order under section 114 of that Act;
(c) a risk of sexual harm order under section 123 of that Act;
“new order” means—
(a) a sexual harm prevention order (made under section 103A of the 2003 Act, inserted by Schedule [Amendments of Part 2 of the Sexual Offences Act 2003]);
(b) a sexual risk order (made under section 122A of that Act, inserted by that Schedule);
“old order” means—
(a) a restraining order under section 5A of the Sex Offenders Act 1997;
(b) a sex offender order under section 2 of the Crime and Disorder Act 1998.
(2) The repeal or amendment by this Act of sections 104 to 122 or sections 123 to 129 of the 2003 Act does not apply in relation to—
(a) an application made before the commencement day for an existing order;
(b) an existing order (whether made before or after that day) applied for before that day;
(c) anything done in connection with such an application or order.
(3) The following sections of the 2003 Act inserted by Schedule [Amendments of Part 2 of the Sexual Offences Act 2003] apply (as appropriate) to an old order as they apply to a new order—
(a) section 103E (variation, renewal and discharge of sexual harm prevention order);
(b) section 103I (offence of breach of sexual harm prevention order);
(c) section 122E (variation, renewal and discharge of sexual risk order);
(d) section 122H (offence of breach of sexual risk order).
(4) As from the commencement day there may be no variation of an existing order or an old order that extends the period of the order or of any of its provisions.
(5) At the end of the period of 5 years beginning with the commencement day—
(a) in relation to any existing order or old order that is still in force, sections 103E and 103I of the 2003 Act or sections 122E and 122H of that Act (as appropriate) have effect, with any necessary modifications (and with any modifications specified in an order under section 152(6) of this Act), as if the provisions of the order were provisions of a new order;
(b) subsections (2) and (3) cease to have effect.
(6) In this section “commencement day” means the day on which this section comes into force.’.—(Damian Green.)
Brought up, read the First and Second time, and added to the Bill.
New Schedule 1
‘SCHEDULE
Amendments of Part 2 of the Sexual Offences Act 2003
Introduction
1 Part 2 of the Sexual Offences Act 2003 (notification and orders) is amended as set out in this Schedule.
Sexual harm prevention orders
2 After section 103 there is inserted—
“Sexual harm prevention orders (England and Wales)
103A Sexual harm prevention orders: applications and grounds
(1) A court may make an order under this section (a “sexual harm prevention order”) in respect of a person (“the defendant”) where subsection (2) or (3) applies to the defendant.
(2) This subsection applies to the defendant where—
(a) the court deals with the defendant in respect of—
(i) an offence listed in Schedule 3 or 5, or
(ii) a finding that the defendant is not guilty of an offence listed in Schedule 3 or 5 by reason of insanity, or
(iii) a finding that the defendant is under a disability and has done the act charged against the defendant in respect of an offence listed in Schedule 3 or 5,
and
(b) the court is satisfied that it is necessary to make a sexual harm prevention order, for the purpose of—
(i) protecting the public or any particular members of the public from sexual harm from the defendant, or
(ii) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.
(3) This subsection applies to the defendant where—
(a) an application under subsection (4) has been made in respect of the defendant and it is proved on the application that the defendant is a qualifying offender, and
(b) the court is satisfied that the defendant’s behaviour since the appropriate date makes it necessary to make a sexual harm prevention order, for the purpose of—
(i) protecting the public or any particular members of the public from sexual harm from the defendant, or
(ii) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.
(4) A chief officer of police or the Director General of the National Crime Agency (“the Director General”) may by complaint to a magistrates’ court apply for a sexual harm prevention order in respect of a person if it appears to the chief officer or the Director General 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 made.
(5) A chief officer of police may make an application under subsection (4) only in respect of a person—
(a) who resides in the chief officer’s police area, or
(b) who the chief officer believes is in that area or is intending to come to it.
(6) An application under subsection (4) may be made to any magistrates’ court whose commission area includes—
(a) any part of a relevant police area, or
(b) any place where it is alleged that the person acted in a way mentioned in subsection (4)(b).
(7) The Director General must as soon as practicable notify the chief officer of police for a relevant police area of any application that the Director has made under subsection (4).
(8) In this section “relevant police area” means—
(a) where the applicant is a chief officer of police, the officer’s police area;
(b) where the applicant is the Director General—
(i) the police area where the person in question resides, or
(ii) a police area which the Director General believes the person is in or is intending to come to.
103B Section 103A: supplemental
(1) In section 103A—
“appropriate date”, in relation to a qualifying offender, means the date or (as the case may be) the first date on which the offender was convicted, found or cautioned as mentioned in subsection (2) or (3) below;
“child” means a person under 18;
“the public” means the public in the United Kingdom;
“sexual harm” from a person means physical or psychological harm caused—
(a) by the person committing one or more offences listed in Schedule 3, or
(b) (in the context of harm outside the United Kingdom) by the person doing, outside the United Kingdom, anything which would constitute an offence listed in Schedule 3 if done in any part of the United Kingdom;
“qualifying offender” means a person within subsection (2) or (3) below;
“vulnerable adult” means a person aged 18 or over whose ability to protect himself or herself from physical or psychological harm is significantly impaired through physical or mental disability or illness, through old age or otherwise.
(2) A person is within this subsection if, whether before or after the commencement of this Part, the person—
(a) has been convicted of an offence listed in Schedule 3 (other than at paragraph 60) or in Schedule 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
(d) has been cautioned in respect of such an offence.
(3) 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—
(a) the person has been convicted of a relevant offence (whether or not the person 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 the person 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 the person is under a disability and did the act charged against the person in respect of the offence, or
(d) the person 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
(b) would have constituted an offence listed in Schedule 3 (other than at paragraph 60) or in Schedule 5 if it had been done in any part of the United Kingdom.
For this purpose an act punishable under the law in force in a country outside the United Kingdom constitutes an offence under that law, however it is described in that law.
(5) For the purposes of section 103A, acts, behaviour, convictions and findings include those occurring before the commencement of this Part.
(6) Subject to subsection (7), on an application under section 103A(4) 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 condition is not in the defendant’s opinion met,
(b) showing the 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).
(8) Subsection (9) applies for the purposes of section 103A and this section.
(9) In construing any reference to an offence listed in Schedule 3, any condition subject to which an offence is so listed that relates—
(a) to the way in which the defendant is dealt with in respect of an offence so listed or a relevant finding (as defined by section 132(9)), or
(b) to the age of any person,
is to be disregarded.
103C SHPOs: effect
(1) A sexual harm prevention order prohibits the defendant from doing anything described in the order.
(2) Subject to section 103D(1), a prohibition contained in a sexual harm prevention order has effect—
(a) for a fixed period, specified in the order, of at least 5 years, or
(b) until further order.
(3) A sexual harm prevention order—
(a) may specify that some of its prohibitions have effect until further order and some for a fixed period;
(b) may specify different periods for different prohibitions.
(4) The only prohibitions that may be included in a sexual harm prevention order are those necessary for the purpose of—
(a) protecting the public or any particular members of the public from sexual harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.
(5) In subsection (4) “the public”, “sexual harm”, “child” and “vulnerable adult” each has the meaning given in section 103B(1).
(6) Where a court makes a sexual harm prevention order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.
103D SHPOs: prohibitions on foreign travel
(1) A prohibition on foreign travel contained in a sexual harm prevention order must be for a fixed period of not more than 5 years.
(2) A “prohibition on foreign travel” means—
(a) a prohibition on travelling to any country outside the United Kingdom named or described in the order,
(b) a prohibition on travelling to any country outside the United Kingdom other than a country named or described in the order, or
(c) a prohibition on travelling to any country outside the United Kingdom.
(3) Subsection (1) does not prevent a prohibition on foreign travel from being extended for a further period (of no more than 5 years each time) under section 103E.
(4) A sexual harm prevention order that contains a prohibition within subsection (2)(c) must require the defendant to surrender all of the defendant’s passports at a police station specified in the order—
(a) on or before the date when the prohibition takes effect, or
(b) within a period specified in the order.
(5) Any passports surrendered must be returned as soon as reasonably practicable after the person ceases to be subject to a sexual harm prevention order containing a prohibition within subsection (2)(c) (unless the person is subject to an equivalent prohibition under another order).
(6) Subsection (5) does not apply in relation to—
(a) a passport issued by or on behalf of the authorities of a country outside the United Kingdom if the passport has been returned to those authorities;
(b) a passport issued by or on behalf of an international organisation if the passport has been returned to that organisation.
(7) In this section “passport” means—
(a) a United Kingdom passport within the meaning of the Immigration Act 1971;
(b) a passport issued by or on behalf of the authorities of a country outside the United Kingdom, or by or on behalf of an international organisation;
(c) a document that can be used (in some or all circumstances) instead of a passport.
103E SHPOs: variations, renewals and discharges
(1) A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a sexual harm 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 to, that officer’s police area;
(d) where the order was made on an application by a chief officer of police under section103A(4), that officer.
(3) An application under subsection (1) may be made—
(a) where the appropriate court is the Crown Court, in accordance with 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 discharging the sexual harm 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—
(a) protecting the public or any particular members of the public from sexual harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.
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—
(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) Subsection (6) does not apply to an order containing a prohibition on foreign travel and no other prohibitions.
(8) In this section “the appropriate court” means—
(a) where the Crown Court or the Court of Appeal made the sexual harm 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 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 includes any part of the chief officer’s police area.
103F Interim SHPOs
(1) This section applies where an application under section 103A(4) (“the main application”) has not been determined.
(2) An application for an order under this section (“an interim sexual harm 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 sexual harm 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 sexual harm prevention order for the order to be varied, renewed or discharged.
103G SHPOs and interim SHPOs: notification requirements
(1) Where—
(a) a sexual harm prevention 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,
the defendant remains subject to the notification requirements.
(2) Where a sexual harm prevention 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 (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 (3).
(3) The “relevant date” is the date of service of the order.
(4) Subsections (1) to (3) apply to an interim sexual harm prevention order as if references to a sexual harm prevention order were references to an interim sexual harm prevention order, and with the omission of “(as renewed from time to time)” in both places.
(5) Where—
(a) a sexual harm prevention order is in effect in relation to a relevant sex offender (within the meaning of section 88A), and
(b) by virtue of section 88F or 88G the relevant sex offender ceases to be subject to the notification requirements of this Part,
the sexual harm prevention order ceases to have effect.
(6) On an application for a sexual harm prevention order made by a chief officer of police, the court must make a notification order in respect of the defendant (either in addition to or instead of a sexual harm prevention order) if—
(a) the applicant invites the court to do so, and
(b) it is proved that the conditions in section 97(2) to (4) are met.
(7) On an application for an interim sexual harm prevention order made by a chief officer of police, the court may, if it considers it just to do so, make an interim notification order (either in addition to or instead of an interim sexual harm prevention order).
103H SHPOs and interim SHPOs: appeals
(1) A defendant may appeal against the making of a sexual harm prevention order—
(a) where the order was made by virtue of section103A(2)(a)(i), as if the order were a sentence passed on the defendant for the offence;
(b) where the order was made by virtue of section103A(2)(a)(ii) or (iii), as if the defendant had been convicted of the offence and the order were a sentence passed on the defendant for that offence;
(c) where the order was made on an application under section103A(4), to the Crown Court.
(2) A defendant may appeal to the Crown Court against the making of an interim sexual harm prevention order.
(3) A defendant may appeal against the making of an order under section 103E, 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 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.
(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 purposes of section 103E(8) or 103F (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).
103I Offence: breach of SHPO or interim SHPO etc
(1) A person who, without reasonable excuse, does anything that the person is prohibited from doing by—
(a) a sexual harm prevention order,
(b) an interim sexual harm prevention order,
(c) a sexual offences prevention order,
(d) an interim sexual offences prevention order, or
(e) a foreign travel order,
commits an offence.
(2) A person commits an offence if, without reasonable excuse, the person fails to comply with a requirement imposed under section 103D(4).
(3) 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 or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.
(4) Where a person is convicted of an offence under this section, it is not open to the court by or before which the person is convicted to make, in respect of the offence, an order for conditional discharge.
103J SHPOs and interim SHPOs: guidance
(1) The Secretary of State must issue guidance to chief officers of police and to the Director General of the National Crime Agency in relation to the exercise by them of their powers with regard to sexual harm prevention orders and interim sexual harm prevention orders.
(2) The Secretary of State may, from time to time, revise the guidance issued under subsection (1).
(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published in such manner as the Secretary of State considers appropriate.”
Sexual offences prevention orders and foreign travel orders
3 (1) Sections 104 to 122 (sexual offences prevention orders and foreign travel orders) are repealed.
(2) This paragraph extends only to England and Wales.
Sexual risk orders
4 Before section 123 there is inserted—
“Sexual risk orders (England and Wales)
122A Sexual risk orders: applications, grounds and effect
(1) A chief officer of police or the Director General of the National Crime Agency (“the Director General”) may by complaint to a magistrates’ court apply for an order under this section (a “sexual risk order”) in respect of a person (“the defendant”) if it appears to the chief officer or the Director General that the following condition is met.
(2) The condition is that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for a sexual risk order to be made.
(3) A chief officer of police may make an application under subsection (1) only in respect of a person—
(a) who resides in the chief officer’s police area, or
(b) who the chief officer believes is in that area or is intending to come to it.
(4) An application under subsection (1) may be made to any magistrates’ court whose commission area includes—
(a) any part of a relevant police area, or
(b) any place where it is alleged that the person acted in a way mentioned in subsection (2).
(5) The Director General must as soon as practicable notify the chief officer of police for a relevant police area of any application that the Director has made under subsection (1).
(6) On an application under subsection (1), the court may make a sexual risk order if it is satisfied that the defendant has, whether before or after the commencement of this Part, done an act of a sexual nature as a result of which it is necessary to make such an order for the purpose of—
(a) protecting the public or any particular members of the public from harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.
(7) 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.
(8) A sexual risk order may specify different periods for different prohibitions.
(9) The only prohibitions that may be imposed are those necessary for the purpose of—
(a) protecting the public or any particular members of the public from harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.
(10) Where a court makes a sexual risk order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect.
122B Section 122A: interpretation
(1) In section 122A—
“child” means a person under 18;
“harm” from the defendant means physical or psychological harm caused by the defendant doing an act of a sexual nature;
“the public” means the public in the United Kingdom;
“vulnerable adult” means a person aged 18 or over whose ability to protect himself or herself from physical or psychological harm is significantly impaired through physical or mental disability or illness, through old age or otherwise.
(2) In that section “relevant police area” means—
(a) where the applicant is a chief officer of police, the officer’s police area;
(b) where the applicant is the Director General of the National Crime Agency—
(i) the police area where the person in question resides, or
(ii) a police area which the Director General believes the person is in or is intending to come to.
122C Sexual risk orders: prohibitions on foreign travel
(1) A prohibition on foreign travel contained in a sexual risk order must not be for a period of more than 5 years.
(2) A “prohibition on foreign travel” means—
(a) a prohibition on travelling to any country outside the United Kingdom named or described in the order,
(b) a prohibition on travelling to any country outside the United Kingdom other than a country named or described in the order, or
(c) a prohibition on travelling to any country outside the United Kingdom.
(3) Subsection (1) does not prevent a prohibition on foreign travel from being extended for a further period (of no more than 5 years each time) under section 122D.
(4) A sexual risk order that contains a prohibition within subsection (2)(c) must require the defendant to surrender all of the defendant’s passports at a police station specified in the order—
(a) on or before the date when the prohibition takes effect, or
(b) within a period specified in the order.
(5) Any passports surrendered must be returned as soon as reasonably practicable after the person ceases to be subject to a sexual risk order containing such a prohibition (unless the person is subject to an equivalent prohibition under another order).
(6) Subsection (5) does not apply in relation to—
(a) a passport issued by or on behalf of the authorities of a country outside the United Kingdom if the passport has been returned to those authorities;
(b) a passport issued by or on behalf of an international organisation if the passport has been returned to that organisation.
(7) In this section “passport” means—
(a) a United Kingdom passport within the meaning of the Immigration Act 1971;
(b) a passport issued by or on behalf of the authorities of a country outside the United Kingdom, or by or on behalf of an international organisation;
(c) a document that can be used (in some or all circumstances) instead of a passport.
122D Sexual risk order: 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 sexual risk 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 to, that officer’s police area;
(a) where the order was made on an application by a chief officer of police, that officer.
(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 sexual risk order, that the court considers appropriate.
(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—
(a) protecting the public or any particular members of the public from harm from the defendant, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.
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 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
(b) in any other case, the chief officer of police for the area in which the defendant resides.
(6) Section 122B(1) applies for the purposes of this section.
(7) In this section “the appropriate court” means—
(a) the court which made the sexual risk order;
(b) a magistrates’ court for the area in which the defendant resides;
(c) where the application is made by a chief officer of police, any magistrates’ court whose commission area includes any part of the officer’s police area.
122E Interim sexual risk orders
(1) This section applies where an application for a sexual risk order (“the main application”) has not been determined.
(2) An application for an order under this section (“an interim sexual risk 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 sexual risk 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 sexual risk order for the order to be varied, renewed or discharged.
122F Sexual risk orders and interim sexual risk orders: notification requirements
(1) A person in respect of whom a court makes—
(a) a sexual risk order (other than one that replaces an interim sexual risk order), or
(b) an interim sexual risk order,
must, within the period of 3 days beginning with the date of service of the order, notify to the police the information set out in subsection (2) (unless the person is subject to the notification requirements of this Part on that date).
(2) The information is—
(a) the person’s name and, where the person uses one or more other names, each of those names;
(b) the person’s home address.
(3) A person who—
(a) is subject to a sexual risk order or an interim sexual risk order (but is not subject to the notification requirements of this Part), and
(b) uses a name which has not been notified under this section (or under any other provision of this Part), or changes home address,
must, within the period of 3 days beginning with the date on which that happens, notify to the police that name or (as the case may be) the new home address.
(4) Sections 87 (method of notification and related matters) and 91 (offences relating to notification) apply for the purposes of this section—
(a) with references to section 83(1) being read as references to subsection (1) above,
(b) with references to section 84(1) being read as references to subsection (3) above, and
(c) with the omission of section 87(2)(b).
122G Sexual risk orders and interim sexual risk orders: appeals
(1) A defendant may appeal to the Crown Court—
(a) against the making of a sexual risk order;
(b) against the making of an interim sexual risk order; or
(c) against the making of an order under section 122D, or the refusal to make 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) or (b) (other than an order directing that an application be re-heard by a magistrates’ court) is for the purposes of section 122D(7) or 122E(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).
122H Offence: breach of sexual risk order or interim sexual risk order etc
(1) A person who, without reasonable excuse, does anything that the person is prohibited from doing by—
(a) a sexual risk order,
(b) an interim sexual risk order,
(c) a risk of sexual harm order,
(d) an interim risk of sexual harm order,
(e) an order under section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (risk of sexual harm orders in Scotland), or
(f) an order under section 5 of that Act (interim risk of sexual harm orders in Scotland),
commits an offence.
(2) A person commits an offence if, without reasonable excuse, the person fails to comply with a requirement imposed under section 122C(4).
(3) 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 or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.
(4) Where a person is convicted of an offence under this section, it is not open to the court by or before which the person is convicted to make, in respect of the offence, an order for conditional discharge.
122I Effect of conviction etc of an offence under section 122H etc
(1) This section applies to a person (“the defendant”) who—
(a) is convicted of an offence mentioned in subsection (2);
(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) is cautioned in respect of such an offence.
(2) Those offences are—
(a) an offence under section 122H or 128 of this Act;
(b) an offence under section 7 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (contravention of risk of sexual harm order or interim risk of sexual harm order in Scotland).
(3) Where—
(a) a defendant was a relevant offender immediately before this section applied to the defendant, and
(b) the defendant would (apart from this subsection) cease to be subject to 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.
(4) Where the defendant was not a relevant offender immediately before this section applied to the defendant—
(a) this section causes the defendant to become subject to the notification requirements of this Part from the time the section first applies to the defendant 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 subsection (5).
(5) The “relevant date” is the date on which this section first applies to the defendant.
(6) In this section “relevant order” means—
(a) where the conviction, finding or caution within subsection (1) is in respect of a breach of a sexual risk order or 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 sexual risk order or an interim risk of sexual harm order, any sexual risk order or risk of sexual harm order made on the hearing of the application to which the interim order relates or, if no such order is made, the interim order.
(7) In subsection (6) “risk of sexual harm order” and “interim risk of sexual harm order” include orders under sections 2 and 5 (respectively) of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.
122J Sexual risk orders and interim sexual risk orders: guidance
(1) The Secretary of State must issue guidance to chief officers of police and to the Director General of the National Crime Agency in relation to the exercise by them of their powers with regard to sexual risk orders and interim sexual risk orders.
(2) The Secretary of State may, from time to time, revise the guidance issued under subsection (1).
(3) The Secretary of State must arrange for any guidance issued or revised under this section to be published in such manner as the Secretary of State considers appropriate.”
Risk of sexual harm orders
5 (1) Sections 123 to 129 (risk of sexual harm orders) are repealed.
(2) This paragraph extends only to England and Wales.
Application etc of orders
6 After section 136 there is inserted—
“136ZA Application of orders throughout the United Kingdom
(1) In this section “relevant order” means—
(a) a sexual harm prevention order;
(b) an interim sexual harm prevention order;
(c) a sexual offences prevention order;
(d) an interim sexual offences prevention order;
(e) a foreign travel order;
(f) a sexual risk order;
(g) an interim sexual risk order;
(h) a risk of sexual harm order;
(i) an interim risk of sexual harm order;
(j) an order under section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (risk of sexual harm orders in Scotland);
(k) an order under section 5 of that Act (interim risk of sexual harm orders in Scotland).
(2) For the purposes of sections 103I, 113, 122, 122H and 128, prohibitions imposed by a relevant order made in one part of the United Kingdom apply (unless expressly confined to particular localities) throughout that and every other part of the United Kingdom.
136ZB Order ceases to have effect when new order made
(1) Where a court in England and Wales makes an order listed in the first column of the following Table in relation to a person who is already subject to an order listed opposite it in the second column, the earlier order ceases to have effect (whichever part of the United Kingdom it was made in) unless the court orders otherwise.
New order | Earlier order |
---|---|
Sexual harm prevention order | —sexual offences prevention order; —foreign travel order. |
Sexual risk order | —risk of sexual harm order; —foreign travel order. |
New order | Earlier order or prohibition |
---|---|
Sexual offences prevention order | —sexual harm prevention order not containing a prohibition on foreign travel; —in the case of a sexual harm prevention order containing a prohibition on foreign travel, each of its other prohibitions. |
Foreign travel order | —prohibition on foreign travel contained in a sexual harm prevention order. |
Risk of sexual harm order | —sexual risk order not containing a prohibition on foreign travel; —in the case of a sexual risk order containing a prohibition on foreign travel, each of its other prohibitions. |