CRIMINAL LAW (SEXUAL OFFENCES) ACT 2017

“9. (1) A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act.

• (2) A person does not consent to a sexual act if—

  • (a) he or she permits the act to take place or submits to it because of the application of force to him or her or to some other person, or because of the threat of the application of force to him or her or to some other person, or because of a well-founded fear that force may be applied to him or her or to some other person,

  • (b) he or she is asleep or unconscious,

  • (c) he or she is incapable of consenting because of the effect of alcohol or some other drug,

  • (d) he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act,

  • (e) he or she is mistaken as to the nature and purpose of the act,

  • (f) he or she is mistaken as to the identity of any other person involved in the act,

  • (g) he or she is being unlawfully detained at the time at which the act takes place,

  • (h) the only expression or indication of consent or agreement to the act comes from somebody other than the person himself or herself.

• (3) This section does not limit the circumstances in which it may be established that a person did not consent to a sexual act.

• (4) Consent to a sexual act may be withdrawn at any time before the act begins, or in the case of a continuing act, while the act is taking place.

• (5) Any failure or omission on the part of a person to offer resistance to an act does not of itself constitute consent to that act.

• (6) In this section—

‘sexual act’ means—

- (a) an act consisting of—

    - (i) sexual intercourse, or

    - (ii) buggery,

- (b) an act described in section 3(1) or 4(1) of this Act, or

- (c) an act which if done without consent would constitute a sexual assault;

  ‘sexual intercourse’ shall be construed in accordance with section 1(2) of the Principal Act.”.

49. Amendment of section 249 of Children Act 2001

49. Section 249 of the Children Act 2001 is amended by the deletion of the definition of “child”.

50. Amendment of Bail Act 1997

50. The Schedule to the Bail Act 1997 is amended by—

• (a) the insertion of the following subparagraph after subparagraph (a) of paragraph 12A:

• “(aa) section 4A (organising etc. child prostitution or production of child pornography);”,

• (b) the insertion of the following subparagraph after subparagraph (b) of paragraph 12A:

• “(ba) section 5A (participation of child in pornographic performance);”,

and

• (c) the insertion of the following paragraph after paragraph 12B:

“12C. An offence under the following provisions of the Criminal Law (Sexual Offences) Act 2017:

• (a) section 3 (obtaining, providing etc. a child for purpose of sexual exploitation);

• (b) section 4 (invitation etc. to sexual touching);

• (c) section 5 (sexual activity in presence of child);

• (d) section 6 (causing child to watch sexual activity);

• (e) section 7 (meeting child for purpose of sexual exploitation);

• (f) section 8 (use of information and communication technology to facilitate sexual exploitation of child);

• (g) section 21 (sexual act with protected person);

• (h) section 22 (offence against relevant person by person in authority).”.

51. Amendment of Act of 2001

51. The Act of 2001 is amended—

• (a) in section 29, by the insertion of the following subsection:

• “(6) In addition to the conditions referred to in subsection (1)(b), a sentence involving post-release supervision imposed after the commencement of this subsection shall include a condition requiring the sex offender to attend all appointments with the probation officer whose supervision he or she is under and to comply with the lawful instructions of that officer.”,

• (b) by the insertion of the following section after section 30:

“Power of court to amend conditions or include new conditions

30A. (1) In any case where a court has imposed on a sex offender, for an offence committed after the commencement of this section, a sentence involving post-release supervision, the court may, on the application of a probation officer not more than one month before the date of the offender’s intended release from prison or any time during the supervision period, amend any condition for securing that supervision referred to in section 29(1)(b) or additional condition referred to under section 30 or include one or more further conditions pursuant to either of the aforesaid sections.

• (2) In any case where a court has imposed on a sex offender, for an offence committed before the commencement of this section, a sentence involving post-release supervision, the court may, on the application of a probation officer not more than one month before the date of the offender’s intended release from prison or any time during the supervision period, amend any condition or include one or more further conditions pursuant to section 29(1)(b) where such conditions are necessary for securing that supervision.

• (3) Subsection (2) shall apply in respect of post-release supervision orders extant at the time of the commencement of this section.

• (4) Any condition referred to in subsection (1) or (2), whether an amended condition or a new condition, shall have the same effect as a condition included in a sentence involving post-release supervision.

• (5) In this section “the date of the sex offender’s release from prison” means the date on which the sentence of imprisonment imposed on the sex offender expires, or as the case may be, his or her remission from the sentence begins.”,

• (c) in the Schedule to the Act of 2001—

• (i) in paragraph 16 by—

• (I) the insertion of the following subparagraph after subparagraph (b):

• “(ba) section 4A (child prostitution and child pornography);”,

• (II) the insertion of the following subparagraph after subparagraph (c):

• “(ca) section 5A (participation of child in pornographic performance);”,

and

• (ii) the insertion of the following paragraph after paragraph 17:

“17A. An offence under the following provisions of the Criminal Law (Sexual Offences) Act 2017:

• (a) section 3 (obtaining, providing etc. a child for purpose of sexual exploitation);

• (b) section 4 (invitation etc. to sexual touching);

• (c) section 5 (sexual activity in presence of child);

• (d) section 6 (causing child to watch sexual activity);

• (e) section 7 (meeting child for purpose of sexual exploitation);

• (f) section 8 (use of information and communication technology to facilitate sexual exploitation of child);

• (g) section 21 (sexual act with protected person);

• (h) section 22 (offence against relevant person by person in authority).”.

52. Amendment of Criminal Procedure Act 2010

52. The Schedule to the Criminal Procedure Act 2010 is amended by the insertion of the following paragraph after paragraph 9:

“9A. An offence under section 2 of the Punishment of Incest Act 1908 (incest by females of or over seventeen).”.

53. Amendment of Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012

53. The Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 is amended—

• (a) in Schedule 1—

• (i) by the insertion of the following paragraph after paragraph 12:

“12A. An offence under section 3A of the Criminal Law (Sexual Offences) Act 2006 (offence by person in authority).”,

• (ii) by the substitution of the following paragraph for paragraph 13:

“13. An offence under any of the following provisions of the Child Trafficking and Pornography Act 1998—

• (a) section 3 (child trafficking and taking, etc., child for sexual exploitation),

• (b) section 4 (allowing child to be used for child pornography),

• (c) section 4A (organising etc. child prostitution or production of child pornography),

• (d) section 5A (participation of child in pornographic performance).”,

and

• (iii) by the insertion of the following paragraph after paragraph 20:

“21. An offence under any of the following provisions of the Criminal Law (Sexual Offences) Act 2017—

• (a) section 3 (obtaining, providing etc. a child for purpose of sexual exploitation),

• (b) section 4 (invitation etc. to sexual touching),

• (c) section 5 (sexual activity in presence of child),

• (d) section 6 (causing child to watch sexual activity),

• (e) section 7 (meeting child for purpose of sexual exploitation),

• (f) section 8 (use of information and communication technology to facilitate sexual exploitation of child).”,

and

• (b) in Schedule 2, by the insertion of the following paragraph after paragraph 11:

“12. An offence under any of the following provisions of the Criminal Law (Sexual Offences) Act 2017—

• (a) section 21 (sexual act with protected person),

• (b) section 22 (offence against relevant person by person in authority).”.

54. Amendment of Taxi Regulation Act 2013

54. The Taxi Regulation Act 2013 is amended—

• (a) in section 30, by the substitution of the following definition for the definition of “sexual offence”:

“ ‘sexual offence’ means an offence referred to in paragraphs 5 to 11A of Part 1, or paragraphs 4 to 7A of Part 2 of the Schedule;”;

• (b) in the Schedule—

• (i) in Part 1, by the insertion of the following paragraph after paragraph 11:

“11A. An offence under section 21 of the Criminal Law (Sexual Offences) Act 2017.”,

• (ii) in Part 2—

• (I) by the substitution of the following paragraph for paragraph 5:

“5. An offence under section 4, 4A, 5 or 5A of the Child Trafficking and Pornography Act 1998.”,

• (II) by the substitution of the following paragraph for paragraph 7:

“7. An offence under section 3 or 3A of the Criminal Law (Sexual Offences) Act 2006.”,

and

• (III) by the insertion of the following paragraph after paragraph 7:

“7A. An offence under section 3, 4, 5, 6, 7 or 8 of the Criminal Law (Sexual Offences) Act 2017.”.

55. Amendment of Children First Act 2015

55. The Children First Act 2015 is amended—

• (a) in section 2, by the deletion of paragraphs (b) and (c) of the definition of “sexual abuse”,

• (b) in Schedule 3—

• (i) by the insertion of the following paragraph after paragraph 9:

“9A. An offence under section 3A of the Criminal Law (Sexual Offences) Act 2006 (offence by person in authority).”,

• (ii) in paragraph 10, by the substitution of the following for subparagraph (b):

• “(b) section 4 (allowing child to be used for child pornography);

• (c) section 4A (organising etc. child prostitution or production of child pornography);

• (d) section 5A (participation of child in pornographic performance).”,

and

• (iii) by the insertion of the following paragraph:

“14. An offence under any of the following provisions of the Criminal Law (Sexual Offences) Act 2017:

• (a) section 4 (invitation etc. to sexual touching);

• (b) section 5 (sexual activity in presence of child);

• (c) section 6 (causing child to watch sexual activity);

• (d) section 8 (use of information and communication technology to facilitate sexual exploitation of child).”.

56. Amendment of Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016

56. Schedule 1 to the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 is amended—

• (a) in Part 1, by the substitution of the following paragraph for paragraph 4:

“4. An offence referred to in—

• (a) paragraph 8 of Part 2 (defilement of child under the age of 17 years), or

• (b) paragraph 23, 24 or 25 of Part 2 in so far as it relates to an offence referred to in subparagraph (a),

committed prior to the commencement of section 17 of the Criminal Law (Sexual Offences) Act 2017 shall not be a sexual offence for the purposes of Part 2 of this Act if the person who is convicted of the offence was at the date of the commission of the offence, not more than 24 months older than the child with whom he or she engaged or attempted to engage in a sexual act within the meaning of section 1 of the Criminal Law (Sexual Offences) Act 2006.”,

• (b) in Part 2—

• (i) in paragraph 17—

• (I) by the insertion of the following subparagraph after subparagraph (b):

• “(ba) section 4A (organising etc. child prostitution or production of child pornography);”,

• (II) by the insertion of the following subparagraph after subparagraph (c):

• “(ca) section 5A (participation of child in pornographic performance);”,

and

• (ii) by the insertion of the following paragraph after paragraph 22:

“22A. An offence under any of the following provisions of the Criminal Law (Sexual Offences) Act 2017:

• (a) section 3 (obtaining, providing etc. a child for purpose of sexual exploitation),

• (b) section 4 (invitation etc. to sexual touching),

• (c) section 5 (sexual activity in presence of child),

• (d) section 6 (causing child to watch sexual activity),

• (e) section 7 (meeting child for purpose of sexual exploitation),

• (f) section 8 (use of information and communication technology to facilitate sexual exploitation of child),

• (g) section 21 (sexual act with protected person),

• (h) section 22 (offence against relevant person by person in authority).”.

57. Offences by bodies corporate

57. Where an offence under this Act is committed by a body corporate and is proved to have been so committed with the consent or connivance of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

58. F5[Commission of another offence specified in Schedule within specified period

58. (1) Subject to subsections (2) and (3), where a person (other than a person under the age of 18 years)—

• (a) has been convicted on indictment of an offence specified in the Schedule (in this section referred to as "the first offence"),

• (b) has been sentenced to imprisonment for a term of not less than 5 years in respect of that offence, and

• (c) is convicted on indictment of an offence specified in the Schedule (in this section referred to as "the subsequent offence") that is committed—

• (i) during the period of 10 years from the date of conviction of the first offence and, for the purpose of determining that period, there shall be disregarded any period of imprisonment in respect of the first offence or the subsequent offence, or

• (ii) during any such period of imprisonment,

(in this section the total period comprising the periods referred to in subparagraphs (i) and (ii) is referred to as "the specified period"),

the court shall, in imposing sentence on the person in respect of the subsequent offence, specify as the minimum term of imprisonment to be served by the person a term of not less than three quarters of the maximum term of imprisonment prescribed by law in respect of such an offence and, if the maximum term so prescribed is life imprisonment, the court shall specify a term of imprisonment of not less than 10 years.

• (2) Subsection (1) shall not apply where the court is satisfied that it would be disproportionate in all the circumstances of the case to specify as the minimum term of imprisonment to be served by the person concerned the term of imprisonment referred to in that subsection in respect of the subsequent offence.

• (3) Subsection (1) shall apply to a person in respect of the subsequent offence only if that offence is committed after the commencement of this section and that subsection shall apply to a person whether the first offence is committed before or after such commencement.

• (4) If, in relation to a sentence of a term of imprisonment imposed on a person in respect of the first offence—

• (a) the operation of the whole term is suspended, then subsection (1) shall not apply to that offence, or

• (b) the operation of a part of the term is suspended, the part of that term the operation of which is not suspended shall be regarded as the term of imprisonment imposed on the person in respect of the first offence for the purposes of subsection (1).

• (5) Subsection (1) shall not apply to a person if the conviction in respect of the first offence is quashed on appeal or otherwise.

• (6) A reference in this section to a sentence imposed on a person in respect of the first offence shall—

• (a) if the sentence is varied on appeal, be construed as a reference to the sentence as so varied, or

• (b) if, on the application of the Director of Public Prosecutions under section 2 of the Criminal Justice Act 1993, the sentence is quashed by the Court of Criminal Appeal or the Court of Appeal, as the case may be, and another sentence is imposed in place of it by that Court on the person, be construed as a reference to that other sentence.

• (7) For the purposes of subsections (1)(c) and (9), a period of imprisonment means any time when the person concerned is—

• (a) remanded in custody,

• (b) serving a sentence F6[in prison,]

• (c) temporarily released under section 2 of the F7[Criminal Justice Act 1960,]

• F8[(ca) conditionally released under section 2A of the Criminal Justice Act 1960, or]

• F9[(d) released on parole within the meaning of the Parole Act 2019.]

• (8) References in this section to the subsequent offence shall include references to a second or subsequent offence specified in the Schedule of which a person (other than a person under the age of 18 years) is convicted on indictment during the specified period.

• (9) The specified period in relation to a person to whom subsection (1) applies shall expire only when the person has not been convicted of an offence specified in the Schedule—

• (a) during the period of 10 years from the date of conviction of the subsequent offence and, for the purpose of determining that period, there shall be disregarded any period of imprisonment in respect of the first offence or the subsequent offence, or

• (b) during any such period of imprisonment.

• (10) If, following the application of subsection (1) to a person in respect of a conviction on indictment of an offence specified in the Schedule—

• (a) his or her conviction in respect of the first offence is quashed on appeal or otherwise, or

• (b) the sentence imposed on the person in respect of the first offence is varied on appeal so that it no longer falls under subsection (1)(b),

the person may apply to the court that imposed the sentence on him or her in respect of the subsequent offence to review it and the court may, if it considers it appropriate to do so, vary that sentence.

• (11)
• (a) If a sentence imposed on a person in respect of a conviction on indictment of an offence specified in the Schedule does not fall under subsection (1)(b) but the sentence is—

• (i) varied on appeal, or

• (ii) on the application of the Director of Public Prosecutions under section 2 of the Criminal Justice Act 1993, quashed by the Court of Criminal Appeal or the Court of Appeal, as the case may be, and another sentence is imposed in place of it by that Court on the person,

so that the sentence then falls under subsection (1)(b), subsection (1) shall apply in respect of an offence specified in the Schedule ("the subsequent offence") committed by the person within the specified period.

• (b) If, in the circumstances referred to in paragraph (a), a sentence has, at the time of the appeal referred to in subparagraph (i) of that paragraph or, as the case may be, the application referred to in subparagraph (ii) of that paragraph, been imposed on the person concerned in respect of the subsequent offence, the Director of Public Prosecutions may apply to the court that imposed the sentence to review it and the court shall apply subsection (1) to that person in respect of the subsequent offence and, if appropriate, vary the sentence accordingly.

• (12) The power conferred by section 23 of the Criminal Justice Act 1951 to commute or remit a punishment shall not, in the case of a person serving a sentence of imprisonment imposed in accordance with subsection (1) in respect of the subsequent offence, be exercised before the expiry of the minimum term of imprisonment specified by the court in accordance with that subsection less any reduction of that term arising under subsection (13).

• (13) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence imposed in accordance with subsection (1) in respect of the subsequent offence and the minimum term of imprisonment specified by the court in accordance with that subsection shall be reduced by the amount of any remission so earned by the person.

• (14) Any power conferred by section 2 of the Criminal Justice Act 1960 to release temporarily a person serving a sentence of imprisonment shall not, in the case of a person serving a sentence imposed in accordance with subsection (1) in respect of the subsequent offence, be exercised during the period for which the commutation or remission of his or her punishment is prohibited by subsection (12) unless for grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by that reason.

• (15) The reference in subsection (14) to section 2 of the Criminal Justice Act 1960 shall be construed to include that section as applied by section 4 of the Prisons Act 1970.

• (16) References in this section to an offence specified in the Schedule shall include—

• (a) references to participation as an accomplice of a person who commits such an offence, and

• (b) references to an offence of attempting or conspiring to commit, or inciting the commission of, such an offence.

• (17) In this section "imprisonment" includes—

• (a) detention in a place provided under section 2 of the Prisons Act 1970, and

• (b) detention in a place specified under section 3 of the Prisons Act 1972,

and "prison" and "sentence of imprisonment" shall be construed accordingly.]

F10[SCHEDULE Offences for the purposes of section 58

Section 58

• (a) section 2 (sexual assault);

• (b) section 3 (aggravated sexual assault);

• (c) section 4 (rape under section 4 of that Act).

• (a) section 2 (sexual offences committed outside the State);

• (b) section 3 (offence of transporting person for purpose of enabling offence to which section 2(1) of that Act relates to be committed);

• (c) section 4 (offence of publishing information likely to promote etc. commission of offence to which section 2(1) of that Act relates).

• (a) section 3 (child trafficking and taking, etc., child for sexual exploitation);

• (b) section 4 (allowing child to be used for child pornography);

• (c) section 4A (organising etc. child prostitution or production of child pornography);

• (d) section 5 (producing, distributing, etc. child pornography);

• (e) section 5A (participation of child in pornographic performance);

• (f) section 6 (possession of child pornography).

• (a) section 2 (defilement of child under 15 years of age);

• (b) section 3 (defilement of child under 17 years of age);

• (c) section 3A (offence by person in authority).

• (a) section 3 (obtaining, providing etc. a child for purpose of sexual exploitation);

• (b) section 4 (invitation etc. to sexual touching);

• (c) section 5 (sexual activity in presence of child);

• (d) section 6 (causing child to watch sexual activity);

• (e) section 7 (meeting child for purpose of sexual exploitation);

• (f) section 8 (use of information and communication technology to facilitate sexual exploitation of child);

• (g) section 21 (sexual act with protected person);

• (h) section 22 (offence against relevant person by person in authority).]

Footnotes