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Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005

Current text a fecha 2005-07-12

Meeting a child following certain preliminary contact

Meeting a child following certain preliminary contact

1

Risk of sexual harm orders

Risk of sexual harm orders: applications, grounds and effect

2

Interpretation of section 2

3

For the purposes of section 2 above—

RSHOs: variations, renewals and discharges

4

may make any order varying, renewing or discharging the risk of sexual harm order that the sheriff considers appropriate.

Interim RSHOs

5

Appeals

6

Offence: breach of RSHO or interim RSHO

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commits an offence.

Effect of conviction etc. under section 7 above or section 128 of Sexual Offences Act 2003

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the person remains subject to those notification requirements.

Sexual services of children and child pornography

Paying for sexual services of a child

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and a person’s sexual services are obtained where what is obtained is the performance of such an activity by the person.

Causing or inciting provision by child of sexual services or child pornography

10

Controlling a child providing sexual services or involved in pornography

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Arranging or facilitating provision by child of sexual services or child pornography

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another person (“B”); and

Sections 10 to 12: supplementary

13

and a person’s sexual services are offered or provided to another person where such an activity is offered to be performed or performed with or for the other person.

Liability to other criminal proceedings

14

Unlawful intercourse with girl between 13 and 16

Removal of time limit for prosecution of offence

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Subsections (4) and (7) of section 5 of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) (unlawful intercourse with a girl under 16) are repealed.

Indecent images of children

Indecent photographs of 16 and 17 year olds

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(52B) (1) If subsection (2) below applies, the accused is not guilty of an offence under section 52(1)(a) of this Act of taking or making an indecent photograph of a child. (2) This subsection applies if— (a) either— (i) the photograph was of the child aged 16 or over; or (ii) the accused reasonably believed that to be so; (b) at the time of the offence charged or at the time when the accused obtained the photograph, the accused and the child were— (i) married to or civil partners of each other; or (ii) partners in an established relationship; and (c) either— (i) the child consented to the photograph being taken or made; or (ii) the accused reasonably believed that to be so. (3) If subsection (4) below applies, the accused is not guilty of an offence under section 52(1)(b) of this Act relating to an indecent photograph of a child. (4) This subsection applies if— (a) either— (i) the photograph was of the child aged 16 or over; or (ii) the accused reasonably believed that to be so; (b) at the time of the offence charged or at the time when the accused obtained the photograph, the accused and the child were— (i) married to or civil partners of each other; or (ii) partners in an established relationship; (c) either— (i) the child consented to the photograph’s being taken or made; or (ii) the accused reasonably believed that to be so; and (d) the showing or distributing of the photograph was only to the child. (5) If subsection (6) below applies, the accused is not guilty of an offence under section 52(1)(c) of this Act relating to an indecent photograph of a child. (6) This subsection applies if— (a) either— (i) the photograph was of the child aged 16 or over; or (ii) the accused reasonably believed that to be so; (b) at the time of the offence charged or at the time when the accused obtained the photograph, the accused and the child were— (i) married to or civil partners of each other; or (ii) partners in an established relationship; (c) either— (i) the child consented to the photograph’s being in the accused’s possession; or (ii) the accused reasonably believed that to be so; and (d) the accused had the photograph in his possession with a view to its being distributed or shown only to the child. (7) If subsection (8) below applies, the accused is not guilty of an offence under section 52A of this Act relating to an indecent photograph of a child. (8) This subsection applies if— (a) either— (i) the photograph was of the child aged 16 or over; or (ii) the accused reasonably believed that to be so; (b) at the time of the offence charged or at the time when the accused obtained the photograph, the accused and the child were— (i) married to or civil partners of each other; or (ii) partners in an established relationship; and (c) either— (i) the child consented to the photograph’s being in the accused’s possession; or (ii) the accused reasonably believed that to be so. (9) Subsections (2), (4), (6) and (8) above apply whether the photograph showed the child alone or with the accused, but not if it showed any other person. (52C) (1) This section applies for the purpose of determining whether a matter within a paragraph of section 52B(2), (4), (6) or (8) of this Act is the case. (2) If sufficient evidence is adduced to raise an issue as to whether the matter is the case, it shall be held to be the case, except where subsection (3) below applies. (3) This subsection applies where the prosecution proves beyond reasonable doubt that the matter is not the case. (4) Otherwise, the matter shall be held not to be the case.

.

Sexual offences prevention orders

Prevention of sexual offences: further provision

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(aa) within whose sheriffdom the person in respect of whom the order is sought resides; (ab) within whose sheriffdom the person is believed by the applicant to be; (ac) to whose sheriffdom the person is believed by the applicant to be intending to come;

; and

(c) a sexual offences prevention order made in any other case and any order granting or refusing a variation, renewal or discharge of such a sexual offences prevention order are, for the purposes of appeal, to be regarded— (i) in the case of solemn proceedings, as if they were orders of the kind referred to in section 106(1)(d) of the Criminal Procedure (Scotland) Act 1995 (c. 46) (appeal against probation and community service orders); (ii) in the case of summary proceedings, as if they were orders of the kind referred to in section 175(2)(c) of that Act (appeal against probation, community service and other orders); and (d) where an appeal is taken by virtue of paragraph (c) above, the High Court of Justiciary may, in the appeal proceedings, suspend the order appealed against pending the disposal of the appeal.

.

(aa) the references in subsection (2) and (3)(a) of section 104 to an offence listed in Schedule 3 or 5 shall be read as references to an offence listed at paragraphs 36 to 60 of Schedule 3;

;

(ia) within whose sheriffdom the person in respect of whom the order is sought resides; (ib) within whose sheriffdom that person is believed by the applicant to be; (ic) to whose sheriffdom that person is believed by the applicant to be intending to come;

;

(ea) an application for an interim sexual offences prevention order— (i) is made by way of the main application; or (ii) if the main application has been made, is made, by application to a sheriff for the sheriffdom of the sheriff to whom the main application was made, by the person who made that application, (and, in relation to such an order, references to a court or the court shall be construed accordingly),

;

(iia) within whose sheriffdom that person is believed by the applicant to be; or (iib) to whose sheriffdom that person is believed by the applicant to be intending to come,

;

(g) an application for the variation, renewal or discharge of a sexual offences prevention order which was made where subsection (2) or (3) of section 104 applies may be made only by the person in respect of whom the order has effect or the prosecutor; (h) such an application is made— (i) where the sexual offences prevention order sought to be varied, renewed or discharged was made by the High Court of Justiciary, to that court; (ii) where that order was made by the sheriff, to the appropriate sheriff.

.

(1A) In subsection (1)(h)(ii), the “appropriate sheriff” is— (a) in a case where the person in respect of whom the order has effect is, at the time of the application for its variation, renewal or discharge, resident in a sheriffdom other than the sheriffdom of the sheriff who made the order, any sheriff exercising criminal jurisdiction in the sheriffdom in which the person is resident; (b) in any other case, any sheriff exercising criminal jurisdiction in the sheriff court district of the sheriff who made the order.

.

General

Minor and consequential amendments

18

The schedule to this Act, which contains minor amendments and amendments consequential on this Act, has effect.

Interpretation

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In this Act—

Citation and commencement

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SCHEDULE

The Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39)

1

In section 16B of the Criminal Law (Consolidation) (Scotland) Act 1995 (commission of certain sexual acts outside the United Kingdom), in subsection (7)—

(k) an offence under section 52A of that Act (possession of indecent images of children); (l) an offence under section 9 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9) (paying for sexual services of a child); (m) an offence under section 10 of that Act (causing or inciting provision by child of sexual services or child pornography); (n) an offence under section 11 of that Act (controlling a child providing sexual services or involved in pornography); and (p) an offence under section 12 of that Act (arranging or facilitating provision by child of sexual services or child pornography).

.

The Criminal Procedure (Scotland) Act 1995 (c. 46)

2

In Schedule 1 to the Criminal Procedure (Scotland) Act 1995 (offences against children under 17 to which special provisions apply), after paragraph 2A there is inserted—

(2B) Any offence under section 52 or 52A of the Civic Government (Scotland) Act 1982 in relation to an indecent photograph of a child under the age of 17 years. (2C) Any offence under section 1, 9, 10, 11 or 12 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 in respect of a child under the age of 17 years.

.

The Sexual Offences Act 2003 (c. 42)

3

In Schedule 3 to the 2003 Act (offences which make a person subject to the requirements of Part 2 of the Act)—

if— (a) the child was under 16 and the offender— (i) was 18 or over, or (ii) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months, or (b) in imposing sentence or otherwise disposing of the case, the court determines that it is appropriate that the offender be regarded, for the purposes of Part 2 of this Act, as a person who has committed an offence under this paragraph

;

if— (a) the child was under 16 and the offender— (i) was 18 or over, or (ii) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months, or (b) in imposing sentence or otherwise disposing of the case, the court determines that it is appropriate that the offender be regarded, for the purposes of Part 2 of this Act, as a person who has committed an offence under this paragraph

;

(59A) An offence under section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9) (meeting a child following certain preliminary contact) if— (a) the offender— (i) was 18 or over, or (ii) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months, or (b) in imposing sentence or otherwise disposing of the case, the court determines that it is appropriate that the offender be regarded, for the purposes of Part 2 of this Act, as a person who has committed an offence under this paragraph. (59B) An offence under section 9 of that Act (paying for sexual services of a child), if— (a) the victim or (as the case may be) other party was under 16 and the offender— (i) was 18 or over, or (ii) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months, or (b) in imposing sentence or otherwise disposing of the case, the court determines that it is appropriate that the offender be regarded, for the purposes of Part 2 of this Act, as a person who has committed an offence under this paragraph. (59C) An offence under any of sections 10 to 12 of that Act, if— (a) the provider of sexual services or (as the case may be) person involved in pornography was under 16 and the offender— (i) was 18 or over, or (ii) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months, or (b) in imposing sentence or otherwise disposing of the case, the court determines that it is appropriate that the offender be regarded, for the purposes of Part 2 of this Act, as a person who has committed an offence under this paragraph.

; and

Meeting a child following certain preliminary contact

Risk of sexual harm orders: applications, grounds and effect

Indecent photographs of 16 and 17 year olds

Prevention of sexual offences: further provision

Minor and consequential amendments

The Criminal Procedure (Scotland) Act 1995 (c. 46)

Editorial notes

[^key-ce3998e7315dc369e0fd1ebc1af4b44c]: S. 1 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-50361090b4790273273b7d95ae6d1a84]: S. 2 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-ae21b963f46bb8d16cdd4615ca110023]: S. 3 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-3a16848df0aa1a6c3dcf501b6c0d2b89]: S. 4 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-e854626d5f56e35ebc6a6ee6abc679ff]: S. 5 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-a55f8dad5782e4ada10709c1c5bba707]: S. 6 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-26db684d09ea3a7ab0a0a8dba5f7b734]: S. 7 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-c6ae73bffcbfa216f6f80b47a64d10ca]: S. 8 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-1429cd21364226ce1da7187e50deabcd]: S. 9 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-05e5e49db83aa204c0fceab645c41ada]: S. 10 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-661e7ae9fb5c0cf37592e7a0b722e827]: S. 11 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-abcd2e056d42fa598ab5a3cfef5b4242]: S. 12 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-4f90826159d1711826a692cd0b8f67b3]: S. 13 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-2808f63677711c864584961b8d5e4f03]: S. 14 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-bb11be36567e3604880478afbdf96a95]: S. 15 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-a1ccd7aa0468ef725af859e53d076cec]: S. 16 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-2c912666d96e625a7ea34aef34825f41]: S. 17 in force at 7.10.2005 by S.S.I. 2005/480, art. 2 (with art. 3(1)(2))

[^key-aecb6c389f214fe857efeaa2f8dd9e35]: S. 18 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-784469c49754eda80822ce77f8c9ca9b]: S. 19 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-7d7aa08338e9d979567bb4917aa85589]: Sch. para. 1 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-9cba9a74f5411b3433a3c4ca31315b56]: Sch. para. 2 in force at 7.10.2005 by S.S.I. 2005/480, art. 2

[^key-1dcfa508eac5af28bf5461a4b401ffc7]: Sch. para. 3 in force at 7.10.2005 by S.S.I. 2005/480, art. 2 (with art. 3(3)(4))

[^M_E_901d69d0-b6dc-4a24-8269-2fbdecc82040]: Sch. para. 3 extended (E.W.N.I.) (8.11.2006) by Violent Crime Reduction Act 2006 (c. 38), s. 56(1)(b)

Risk of sexual harm orders: applications, grounds and effect

Indecent photographs of 16 and 17 year olds

Minor and consequential amendments

14A