Legalize / United Kingdom / Public General Act

Sexual Offences Act 2003

Type Public General Act

Publication 2003-11-20

Last updated 2023-11-27

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(5) The applicant or the defendant may by complaint apply to the court that made the interim risk of sexual harm order for the order to be varied, renewed or discharged.

RSHOs and interim RSHOs: appeals

127

(1) A defendant may appeal to a county court—

(a) against the making of a risk of sexual harm order;

(b) against the making of an interim risk of sexual harm order; or

(2) On any such appeal, the county 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 a county court on an appeal under subsection (1)(a) or (b) (other than an order directing that an application be re-heard by a court of summary jurisdiction) is for the purposes of section 125(7) or 126(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 county court).

Offence: breach of RSHO or interim RSHO

128

(1) A person who, without reasonable excuse, does anything that the person is prohibited from doing by—

(a) a risk of sexual harm order,

(b) an interim risk of sexual harm order,

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

commits an offence.

(1A) A person who, without reasonable excuse—

(a) does anything that the person is prohibited from doing by a sexual risk order or an interim sexual risk order, or

(b) fails to do something that the person is required to do by a sexual risk order or an interim sexual risk order,

commits an offence.

(1B) A person who, without reasonable excuse—

(a) does anything that the person is prohibited from doing by a relevant Scottish order, or

(b) fails to do something that the person is required to do by a relevant Scottish order,

commits an offence.

(1C) In subsection (1B) “relevant Scottish order” means—

(a) a sexual risk order made under section 27 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22), or

(b) an interim sexual risk order made under section 31 of that Act.

(2) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

(3) Where a person is convicted of an offence under this section, it is not open to the court by or before which he is convicted to make, in respect of the offence, an order for conditional discharge.

Effect of conviction etc. of an offence under section 128

129

(1) This section applies to a person (“the defendant”) who—

(a) is convicted of an offence mentioned in subsection (1A);

(b) is found not guilty of such an offence by reason of insanity;

(d) is cautioned in respect of such an offence.

(1A) Those offences are—

(a) an offence under section 122H or 128 of this Act;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1B) This section also applies to a person (“the defendant”) who—

(a) is convicted of an offence mentioned in subsection (1C),

(b) is acquitted of such an offence by reason of the special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995, or

(c) is found, in respect of such an offence, to be unfit for trial under section 53F of that Act in a case where the court determines that the defendant has done the act constituting the offence.

(1C) Those offences are—

(a) an offence under section 34 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (asp 22) (breach of sexual risk order or interim sexual risk order in Scotland);

(b) an offence under section 37 of that Act (breach of equivalent orders) in respect of a breach of an order made under section 122A, 122E, 123 or 126 of this Act.

(2) Where —

(a) a defendant was a relevant offender immediately before this section applied to him, 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.

(3) Where the defendant was not a relevant offender immediately before this section applied to him—

(a) this section causes the defendant to become subject to the notification requirements of this Part from the time the section first applies to him 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 (4).

(4) The “relevant date” is the date on which this section first applies to the defendant.

(5) In this section “relevant order” means—

(a) where the conviction, finding , caution or acquittal within subsection (1) or (1B) is in respect of a breach of a risk of sexual harm order or a sexual risk order, that order;

(b) where the conviction, finding , caution or acquittal within subsection (1) or (1B) is in respect of a breach of an interim risk of sexual harm order or an interim sexual risk order, any risk of sexual harm order or sexual risk order made on the hearing of the application to which the interim order relates or, if no such order is made, the interim order.

(5A) In subsection (5) “sexual risk order” and “interim sexual risk order” include orders under sections 27 and 31 (respectively) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to amend Schedules 3 and 5

130

(1) The Secretary of State may by order amend Schedule 3 or 5.

(2) Subject to subsection (3), an amendment within subsection (4) does not apply to convictions, findings and cautions before the amendment takes effect.

(3) For the purposes of sections 106 and 116, an amendment within subsection (4) applies to convictions, findings and cautions before as well as after the amendment takes effect.

(4) An amendment is within this subsection if it—

(a) adds an offence,

(b) removes a threshold relating to an offence, or

(c) changes a threshold in such a way as to cause an offence committed by or against a person of a particular age or in certain circumstances, or resulting in a particular disposal, to be within a Schedule when it would not otherwise be.

General

Young offenders: application

131

This Part applies to—

(a) a period of detention which a person is liable to serve under a detention and training order (including an order under section 211 of the Armed Forces Act 2006), or a secure training order,

(b) a period for which a person is ordered to be detained in residential accommodation under section 44(1) of the Criminal Procedure (Scotland) Act 1995 (c. 46),

(c) a period of training in a training school, or of custody in a remand centre, which a person is liable to undergo or serve by virtue of an order under section 74(1)(a) or (e) of the Children and Young Persons Act (Northern Ireland) 1968 (c. 34 (N.I.)),

(d) a period for which a person is ordered to be detained in a juvenile justice centre under Article 39 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)),

(e) a period for which a person is ordered to be kept in secure accommodation under Article 44A of the Order referred to in paragraph (d),

(f) a sentence of detention in a young offender institution, a young offenders institution or a young offenders centre,

(g) a sentence under a custodial order within the meaning of section 71AA of, or paragraph 10(1) of Schedule 5A to, the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 43AA of, or paragraph 10(1) of Schedule 4A to, the Naval Discipline Act 1957 (c. 53),

(h) a sentence of detention under section 90 or 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6), section 250 , 252A or 259 of the Sentencing Code, section 209 or 218 of the Armed Forces Act 2006, section 205ZC(5) or 208 of the Criminal Procedure (Scotland) Act 1995 or Article 45 of the Criminal Justice (Children) (Northern Ireland) Order 1998,

(i) a sentence of custody for life under section 93 or 94 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) or section 272 or 275 of the Sentencing Code (including one passed as a result of section 210A, 217, 218A or 219 of the Armed Forces Act 2006),

(j) a sentence of detention, or custody for life, under section 71A of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 43A of the Naval Discipline Act 1957 (c. 53),

(k) a sentence of detention for public protection under section 226 of the Criminal Justice Act 2003 (including one passed as a result of section 221 of the Armed Forces Act 2006),

(l) an extended sentence under section 226B or 228 of the Criminal Justice Act 2003 or section 254 of the Sentencing Code (including one passed as a result of section 221A or 222 of the Armed Forces Act 2006),

(m) a sentence of detention under Article 13(4)(b) or 14(5) of the Criminal Justice (Northern Ireland) Order 2008,

(n) a sentence of detention under Article 15A(5) of the Criminal Justice (Northern Ireland) Order 2008

as it applies to an equivalent sentence of imprisonment; and references in this Part to prison or imprisonment are to be interpreted accordingly.

Offences with thresholds

132

(1) This section applies to an offence which in Schedule 3 is listed subject to a condition relating to the way in which the defendant is dealt with in respect of the offence or (where a relevant finding has been made in respect of him) in respect of the finding (a “sentencing condition”).

(2) Where an offence is listed if either a sentencing condition or a condition of another description is met, this section applies only to the offence as listed subject to the sentencing condition.

(3) For the purposes of this Part (including in particular section 82(6))—

(a) a person is to be regarded as convicted of an offence to which this section applies, or

(b) (as the case may be) a relevant finding in relation to such an offence is to be regarded as made,

at the time when the sentencing condition is met.

(4) In the following subsections, references to a foreign offence are references to an act which—

(a) constituted an offence under the law in force in a country outside the United Kingdom (“the relevant foreign law”), and

(b) would have constituted an offence to which this section applies (but not an offence, listed in Schedule 3, to which this section does not apply) if it had been done in any part of the United Kingdom.

(5) In relation to a foreign offence, references to the corresponding UK offence are references to the offence (or any offence) to which subsection (4)(b) applies in the case of that foreign offence.

(6) For the purposes of this Part, a person is to be regarded as convicted under the relevant foreign law of a foreign offence at the time when he is, in respect of the offence, dealt with under that law in a way equivalent to that mentioned in Schedule 3 as it applies to the corresponding UK offence.

(7) Where in the case of any person a court exercising jurisdiction under the relevant foreign law makes in respect of a foreign offence a finding equivalent to a relevant finding, the court’s finding is, for the purposes of this Part, to be regarded as made at the time when the person is, in respect of the finding, dealt with under that law in a way equivalent to that mentioned in Schedule 3 as it applies to the corresponding UK offence.

(8) Where (by virtue of an order under section 130 or otherwise) an offence is listed in Schedule 5 subject to a sentencing condition, this section applies to that offence as if references to Schedule 3 were references to Schedule 5.

(9) In this section, “relevant finding”, in relation to an offence, means—

(a) a finding that a person is not guilty of the offence by reason of insanity, or

(b) a finding that a person is under a disability and did the act charged against him in respect of the offence.

Part 2: general interpretation

133

(1) In this Part—

“admitted to a hospital” means admitted to a hospital under—section 37 of the Mental Health Act 1983 (c. 20), section 57(2)(a) or 57A(2) of the Criminal Procedure (Scotland) Act 1995 (c. 46) or Article 44 or 50A(2) of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4));Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25); orsection 46 of the Mental Health Act 1983, section 69 of the Mental Health (Scotland) Act 1984 or Article 52 of the Mental Health (Northern Ireland) Order 1986;

“applicable date” has the meaning given by section 88D(5)

“cautioned” means—cautioned (or, in Northern Ireland, cautioned by a police officer) after the person concerned has admitted the offence, ......and “caution” is to be interpreted accordingly;

“community order” means—a community order within the meaning of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (as that Act had effect before the passing of the Criminal Justice Act 2003);a community payback order made under the Criminal Procedure (Scotland) Act 1995 (c.46);a community order within the meaning of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)), a probation order under section 1 of the Probation Act (Northern Ireland) 1950 (c. 7 (N.I.)) or a community service order under Article 7 of the Treatment of Offenders (Northern Ireland) Order 1976 (S.I. 1976/226 (N.I. 40)); ora community supervision order;

“community supervision order” means an order under paragraph 4 of Schedule 5A to the Army Act 1955 or the Air Force Act 1955 or Schedule 4A to the Naval Discipline Act 1957;

“country” includes territory;

“date of discharge” has the meaning given by section 88B(1)

“detained in a hospital” means detained in a hospital under—Part 3 of the Mental Health Act 1983, section 136 of the Mental Health (Care and Treatment)(Scotland) Act 2003 (asp 13), Part 6 of the Criminal Procedure (Scotland) Act 1995 or Part III of the Mental Health (Northern Ireland) Order 1986;Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991; orsection 46 of the Mental Health Act 1983, section 69 of the Mental Health (Scotland) Act 1984 or Article 52 of the Mental Health (Northern Ireland) Order 1986;

“further date of discharge” has the meaning given by section 88B(3)

“guardianship order” means a guardianship order under section 37 of the Mental Health Act 1983 (c. 20), section 58 of the Criminal Procedure (Scotland) Act 1995 (c. 46) or Article 44 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4));

“home address” has the meaning given by section 83(7);

“interim notification order” has the meaning given by section 100(2);

“interim risk of sexual harm order” has the meaning given by section 126(2);

“interim sexual harm prevention order” has the meaning given by section 103F(2);

“interim sexual offences prevention order” has the meaning given by section 109(2);

“interim sexual risk order” has the meaning given by section 122E(2);

“kept in service custody” means kept in service custody by virtue of an order under section 105(2) of the Armed Forces Act 2006 (but see also subsection (3));

“local police area” has the meaning given by section 88(3);

“local probation board” has the same meaning as in the Criminal Justice and Court Services Act 2000 (c. 43);

“notification continuation order” has the meaning given by section 88C(2)

“notification order” has the meaning given by section 97(1);

“notification period” has the meaning given by section 80(1);

“order for conditional discharge” means an order under any of the following provisions discharging the offender conditionally— section 80 of the Sentencing Code; Article 4 of the Criminal Justice (Northern Ireland) Order 1996;section 185 of the Armed Forces Act 2006;paragraph 3 of Schedule 5A to the Army Act 1955 or Air Force Act 1955 or Schedule 4A to the Naval Discipline Act 1957;

“parental responsibility” has the same meaning as in the Children Act 1989 (c. 41) or the Children (Northern Ireland) Order 1995 (S.I. 1995/ 755 (N.I. 2)), and “parental responsibilities” has the same meaning as in Part 1 of the Children (Scotland) Act 1995 (c. 36);

“the period of conditional discharge” has the meaning given by each of the following— section 80(1) of the Sentencing Code; Article 2(2) of the Criminal Justice (Northern Ireland) Order 1996;section 185(2) of the Armed Forces Act 2006;

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“prohibition on foreign travel” has the meaning given by section 103D(2) or 122C(2);

“relevant date” has the meaning given by section 82(6) (save in the circumstances mentioned in sections 88B, , 96ZC, 98, 96A(6) , 100, 107, 109 and 129);

“relevant offender” has the meaning given by section 80(2);

“restriction order” means—an order under section 41 of the Mental Health Act 1983, section 57(2)(b) or 59 of the Criminal Procedure (Scotland) Act 1995 or Article 47(1) of the Mental Health (Northern Ireland) Order 1986;a direction under paragraph 2(1)(b) of Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25) or Article 50A(3)(b) of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)); ora direction under section 46 of the Mental Health Act 1983, section 69 of the Mental Health (Scotland) Act 1984 or Article 52 of the Mental Health (Northern Ireland) Order 1986;

“risk of sexual harm order” has the meaning given by section 123(1);

“service detention” has the meaning given by section 374 of the Armed Forces Act 2006;

“sexual harm prevention order” has the meaning given by section 103A(1);

“sexual offences prevention order” has the meaning given by section 106(1);

“sexual risk order” has the meaning given by section 122A(1);

“specified”, in relation to an offender supervision requirement, means specified in the requirement.

“supervision” means supervision in pursuance of an order made for the purpose or, in the case of a person released from prison on licence, in pursuance of a condition contained in his licence;

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1A) A reference to a provision specified in paragraph (a) of the definition of “admitted to a hospital”, “detained in a hospital” or “restriction order” includes a reference to the provision as it applies by virtue of—

(a) section 5 of the Criminal Procedure (Insanity) Act 1964,

(b) section 6 or 14 of the Criminal Appeal Act 1968,

(ba) Schedule 4 to the Armed Forces Act 2006 (including as applied by section 16(2) of the Court Martial Appeals Act 1968),

(d) section 16 or 23 of the Courts-Martial (Appeals) Act 1968.

(2) Where under section 141 different days are appointed for the commencement of different provisions of this Part, a reference in any such provision to the commencement of this Part is to be read (subject to section 98(4)) as a reference to the commencement of that provision.

(3) In relation to any time before the commencement of section 105(2) of the Armed Forces Act 2006, “kept in service custody” means being kept in military, air-force or naval custody by virtue of an order made under section 75A(2) of the Army Act 1955 or of the Air Force Act 1955 or section 47G(2) of the Naval Discipline Act 1957 (as the case may be).

Conditional discharges and probation orders

134

(1) The following provisions do not apply for the purposes of this Part to a conviction for an offence in respect of which an order for conditional discharge . . . is made—

(a) section 82(2) of the Sentencing Code (conviction with absolute or conditional discharge deemed not to be a conviction);

(b) Article 6(1) of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)) (conviction with absolute or conditional discharge deemed not to be a conviction);

(c) section 247(1) of the Criminal Procedure (Scotland) Act 1995 (c. 46) (conviction with . . . absolute discharge deemed not to be a conviction);

(ca) section 187(1) of the Armed Forces Act 2006 (conviction with absolute or conditional discharge deemed not to be a conviction);

(d) paragraph 5(1) of Schedule 5A to the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or Schedule 4A to the Naval Discipline Act 1957 (c. 53) (conviction with absolute or conditional discharge or community supervision order deemed not to be a conviction).

(2) Subsection (1) applies only to convictions after the commencement of this Part.

(3) The provisions listed in subsection (1)(d) do not apply for the purposes of this Part to a conviction for an offence in respect of which a community supervision order is or has (before or after the commencement of this Part) been made.

Interpretation: mentally disordered offenders

135

(1) In this Part, a reference to a conviction includes a reference to a finding of a court in summary proceedings, where the court makes an order under an enactment within subsection (2), that the accused did the act charged; and similar references are to be interpreted accordingly.

(2) The enactments are—

(a) section 37(3) of the Mental Health Act 1983 (c. 20);

(b) section 58(3) of the Criminal Procedure (Scotland) Act 1995 (c. 46);

(2A) In the application of this Part in relation to Scotland, a reference to a person being found not guilty of an offence by reason of insanity is to be read as a reference to a person being acquitted of an offence by reason of the special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995.

(3) In this Part, a reference to a person being or having been found to be under a disability and to have done the act charged against him in respect of an offence includes a reference to his being or having been found—

(a) unfit to be tried for the offence;

(b) to be insane so that his trial for the offence cannot or could not proceed; or

(4) In section 133—

(a) a reference to admission or detention under Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25), and the reference to a direction under paragraph 2(1)(b) of that Schedule, include respectively—

(i) a reference to admission or detention under Schedule 1 to the Criminal Procedure (Insanity) Act 1964 (c. 84); and

(ii) a reference to a restriction order treated as made by paragraph 2(1) of that Schedule;

(b) a reference to admission or detention under any provision of Part 6 of the Criminal Procedure (Scotland) Act 1995, and the reference to an order under section 57(2)(b) or 59 of that Act, include respectively—

(i) a reference to admission or detention under section 174(3) or 376(2) of the Criminal Procedure (Scotland) Act 1975 (c. 21); and

(ii) a reference to a restriction order made under section 178(1) or 379(1) of that Act;

Part 2: Northern Ireland

136

(1) This Part applies to Northern Ireland with the following modifications.

(2) References to a chief officer of police are to be read as references to the Chief Constable of the Police Service of Northern Ireland.

(3) References to police areas are to be read as references to Northern Ireland.

(4) References to a complaint are to be read as references to a complaint under Part VIII of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) to a court of summary jurisdiction.

(4A) In section 132A the reference to section 127 of the Magistrates' Courts Act 1980 is to be read as a reference to Article 78 of the Magistrates' Courts (Northern Ireland) Order 1981.

(5) Subject to subsection (6), references to a magistrates' court or to a magistrates court for a particular area are to be read as references to a court of summary jurisdiction.

(6) References to a magistrates' court for the area in which the defendant resides are to be read as references to a court of summary jurisdiction for the petty sessions district which includes the area where the defendant resides.

(7) References to a youth court for the area in which the defendant resides are to be read as references to a youth court for the petty sessions district which includes the area where the defendant resides.

(7A) References to a justice of the peace are to be read as references to a lay magistrate.

(8) The reference in section 101 to the Crown Court is to be read as a reference to a county court.

(9) Any direction of the county court made under section 89(1) on an appeal under Article 143 of the Magistrates' Courts (Northern Ireland) Order 1981 (appeals in other cases) (other than one directing that an application be re-heard by a court of summary jurisdiction) is, for the purposes of section 90, to be treated as if it were made by the court from which the appeal was brought and not by the county court.

(10) Any order of the county court made on an appeal under Article 143 of the Magistrates' Courts (Northern Ireland) Order 1981 (other than one directing that an application be re-heard by a court of summary jurisdiction) is, for the purposes of section 108, to be treated as if it were an order of the court from which the appeal was brought and not an order of the county court.

(11) References to the Secretary of State, except in sections 94 and 95, are to be read as references to the Department of Justice in Northern Ireland.

Part 3 — General

Service courts

137

(1) In this Act and in sections 343 to 354 of the Sentencing Code (sexual harm prevention orders on conviction)—

(a) a reference to a court order or a conviction or finding includes a reference to an order of or a conviction or finding by a service court,

(b) a reference to an offence includes a reference to an offence triable by a service court,

(d) a reference to proceedings for an offence under this Act includes a reference to proceedings for an offence under section 42 of the Armed Forces Act 2006 as respects which the corresponding offence under the law of England and Wales (within the meaning given by that section) is that offence.

(2) In sections 92 and 103A(1) of this Act, and section 345 of the Sentencing Code, “court” includes a service court.

(3) Where the court making a sexual harm prevention order is a service court—

(a) sections 103A(3) and (4) to (9), 103F , 103FA(3)(a), (4) and (6) and 103J of this Act, and sections 348A(3)(a), (4) and (6) and 355 to 357 of the Sentencing Code do not apply;

(b) sections 103A(1), (2) and (3A), 103B to 103E , 103FA(1), (2), (3)(b) and (5) to (9), 103FB and 103G to 103I of this Act, and sections 343 to 348, 348A(1), (2), (3)(b) and (5) to (9), 348B to 354 and 358 of the Sentencing Code apply—

(i) subject to paragraphs (ba), (bb) (c) and (d), and

(ii) as if they extended to the whole of the United Kingdom;

(ba) if section 103CA applies to the defendant at a time when the defendant is a person subject to service law or a civilian subject to service discipline, the reference in section 103CA(4)(c) (requirements included in order: report on compliance) to the appropriate chief officer of police is to be read as a reference to a Provost Marshal;

(bb) if section 347A applies to the defendant at a time when the defendant is a person subject to service law or a civilian subject to service discipline, the reference in section 347A(4)(c) of the Sentencing Code (requirements included in order: report on compliance) to the appropriate chief office of police is to be read as a reference to a Provost Marshal;

(c) in relation to an application under section 103E of this Act, or an application under section 350 of the Sentencing Code, in respect of a defendant who at the time of the application is a person subject to service law or a civilian subject to service discipline—

(i) the application may be made only by the defendant or a Provost Marshal, and must be made to the Court Martial;

(ia) the reference in section 103E(2A) to a person mentioned in subsection (2)(b) to (d) is to be read as a reference to a Provost Marshal;

(ib) the reference in section 350(3A) of the Sentencing Code to a person mentioned in subsection (2)(b) or (c) is to be read as a reference to a Provost Marshal;

(ii) consent under section 103E(7) of this Act, or section 350(7) of the Sentencing Code, must be the consent of the defendant and a Provost Marshal;

(iii) an appeal against the making of an order under section 103E of this Act or section 350 of the Sentencing Code, or the refusal to make such an order, must be made to the Court Martial Appeal Court;

(d) in relation to an application under section 103E of this Act, or an application under section 350 of the Sentencing Code, in respect of a defendant who at the time of the application is neither a person subject to service law nor a civilian subject to service discipline—

(i) the application must be made to the Crown Court in England and Wales;

(ii) an appeal against the making of an order under section 103E of this Act or section 350 of the Sentencing Code, or the refusal to make such an order, must be made to the Court of Appeal in England and Wales.

(4) In this section—

“civilian subject to service discipline” has the same meaning as in the Armed Forces Act 2006 (see section 370 of that Act);

“Provost Marshal” means the Provost Marshal of a service police force or the Provost Marshal for serious crime;

“service court” means the Court Martial or the Service Civilian Court;

“subject to service law” has the same meaning as in the Armed Forces Act 2006 (see section 374 of that Act).

(5) In subsection (1)(a) the reference to a service court includes a reference to the following—

(a) the Court Martial Appeal Court;

(b) the Supreme Court on an appeal brought from the Court Martial Appeal Court;

(d) a Standing Civilian Court.

(6) Paragraphs (c)(i) and (d)(i) of subsection (3) have effect, in relation to a sexual harm prevention order made by the Court Martial Appeal Court, as if the reference to a service court in that subsection included a reference to that court.

Orders and regulations

138

(1) Any power to make orders or regulations conferred by this Act on the Secretary of State is exercisable by statutory instrument.

(2) A statutory instrument containing an order or regulations under section 21, 22A, any of sections 83 to 86 , section 130 or section 136Q(1) may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.

(3) Any other statutory instrument, except one containing an order under section 141, is to be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) Orders or regulations made by the Secretary of State under this Act may—

(a) make different provision for different purposes;

(b) include supplementary, incidental, consequential, transitional, transitory or saving provisions.

(5) Any power of the Department of Justice in Northern Ireland to make orders or regulations under this Act is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979.

(6) An order or regulations under any of sections 83 to 86 or section 130 may not be made by the Department of Justice unless a draft of the order or regulations has been laid before, and approved by a resolution of, the Northern Ireland Assembly.

(7) Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (6) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.

(8) Any other order or regulations made by the Department of Justice are subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954).

(9) Orders or regulations made by the Department of Justice may—

(a) make different provision for different purposes;

(b) include supplementary, incidental, consequential, transitional, transitory or saving provisions.

Minor and consequential amendments

139

Schedule 6 contains minor and consequential amendments.

Repeals and revocations

140

The provisions listed in Schedule 7 are repealed or revoked to the extent specified.

Commencement

141

(1) This Act, except this section and sections 138, 142 and 143, comes into force in accordance with provision made by the Secretary of State by order.

(2) An order under subsection (1) may—

(a) make different provision for different purposes;

(b) include supplementary, incidental, saving or transitional provisions.

Extent, saving etc.

142

(1) Subject to section 137 and to subsections (2) to (4), this Act extends to England and Wales only.

(2) The following provisions also extend to Northern Ireland—

(a) sections 46 and ...,

(b) Schedule 2,

(ca) Part 2A;

(d) sections 138, 141, 143 and this section.

(2A) Sections 85A, 96A, 96AA, 110, 117A, 119 and 123 to 129 and Schedule 3A extend only to Northern Ireland.

(3) The following provisions also extend to Scotland—

(a) sections 80 to 85, 86 to 88, 89 to 91, 92, 94 to 96, 97 to 103, 122F, 130 to 132 and 133 to 136ZB;

(b) sections 138, 141, 143 and this section.

(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.

(3C) The references to section 96A in subsections (2A) and (3A) are references respectively to—

(a) the section 96A inserted by the Criminal Justice Act (Northern Ireland) 2013, and

(b) the section 96A inserted by the Police, Public Order and Criminal Justice (Scotland) Act 2006.

(4) Unless otherwise provided, any amendment, repeal or revocation made by this Act has the same extent as the provision to which it relates.

(5) Section 16B of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) continues to have effect despite the repeal by this Act of section 8 of the Sex Offenders Act 1997 (c. 51).

(6) For the purposes of the Scotland Act 1998 (c. 46), this Act is to be taken to be a pre-commencement enactment.

Short title

143

This Act may be cited as the Sexual Offences Act 2003.

SCHEDULE 1

Sexual Offences Act 1956 (c. 69)

1

In section 36 of the Sexual Offences Act 1956 (permitting premises to be used for prostitution), at the end insert “ (whether any prostitute involved is male or female) ”.

Street Offences Act 1959 (c. 57)

2

In section 1(1) of the Street Offences Act 1959 (loitering or soliciting for purposes of prostitution), after “prostitute” insert “ (whether male or female) ”.

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sexual Offences Act 1985 (c. 44)

4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 2

England and Wales

1

In relation to England and Wales, the following are sexual offences to which subsections (1), (2) and (3) of section 72 apply—

(a) an offence under any of sections 5 to 19, 25 and 26 and 47 to 50;

(b) an offence under any of sections 1 to 4, 30 to 41 and 61 where the victim of the offence was under 18 at the time of the offence;

(d) an offence under—

(i) section 1 of the Protection of Children Act 1978 (c. 37) (indecent photographs of children), or

(ii) section 160 of the Criminal Justice Act 1988 (c. 33) (possession of indecent photograph of child).

...

Northern Ireland

2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

General

3

A reference in paragraph 1 or 1A ... to an offence includes—

(a) a reference to an attempt, conspiracy or incitement to commit that offence; and

(b) a reference to aiding and abetting, counselling or procuring the commission of that offence.

SCHEDULE 3

England and Wales

1

An offence under section 1 of the Sexual Offences Act 1956 (c. 69) (rape).

2

An offence under section 5 of that Act (intercourse with girl under 13).

3

An offence under section 6 of that Act (intercourse with girl under 16), if the offender was 20 or over.

4

An offence under section 10 of that Act (incest by a man), if the victim or (as the case may be) other party was under 18.

5

An offence under section 12 of that Act (buggery) if—

(a) the offender was 20 or over, and

(b) the victim or (as the case may be) other party was under 18.

6

An offence under section 13 of that Act (indecency between men) if—

(a) the offender was 20 or over, and

(b) the victim or (as the case may be) other party was under 18.

7

An offence under section 14 of that Act (indecent assault on a woman) if—

(a) the victim or (as the case may be) other party was under 18, or

(b) the offender, in respect of the offence or finding, is or has been—

(i) sentenced to imprisonment for a term of at least 30 months; or

(ii) admitted to a hospital subject to a restriction order.

8

An offence under section 15 of that Act (indecent assault on a man) if—

(a) the victim or (as the case may be) other party was under 18, or

(b) the offender, in respect of the offence or finding, is or has been—

(i) sentenced to imprisonment for a term of at least 30 months; or

(ii) admitted to a hospital subject to a restriction order.

9

An offence under section 16 of that Act (assault with intent to commit buggery), if the victim or (as the case may be) other party was under 18.

10

An offence under section 28 of that Act (causing or encouraging the prostitution of, intercourse with or indecent assault on girl under 16).

11

An offence under section 1 of the Indecency with Children Act 1960 (c. 33) (indecent conduct towards young child).

12

An offence under section 54 of the Criminal Law Act 1977 (c. 45) (inciting girl under 16 to have incestuous sexual intercourse).

13

An offence under section 1 of the Protection of Children Act 1978 (c. 37) (indecent photographs of children), if the indecent photographs or pseudo-photographs showed persons under 16 and—

(a) the conviction, finding or caution was before the commencement of this Part, or

(b) the offender—

(i) was 18 or over, or

(ii) is sentenced in respect of the offence to imprisonment for a term of at least 12 months.

14

An offence under section 170 of the Customs and Excise Management Act 1979 (c. 2) (penalty for fraudulent evasion of duty etc.) in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876 (c. 36) (indecent or obscene articles), if the prohibited goods included indecent photographs of persons under 16 and—

(a) the conviction, finding or caution was before the commencement of this Part, or

(b) the offender—

(i) was 18 or over, or

(ii) is sentenced in respect of the offence to imprisonment for a term of at least 12 months.

15

An offence under section 160 of the Criminal Justice Act 1988 (c. 33) (possession of indecent photograph of a child), if the indecent photographs or pseudo-photographs showed persons under 16 and—

(a) the conviction, finding or caution was before the commencement of this Part, or

(b) the offender—

(i) was 18 or over, or

(ii) is sentenced in respect of the offence to imprisonment for a term of at least 12 months.

16

An offence under section 3 of the Sexual Offences (Amendment) Act 2000 (c. 44) (abuse of position of trust), if the offender was 20 or over.

17

An offence under section 1 or 2 of this Act (rape, assault by penetration).

18

An offence under section 3 of this Act (sexual assault) if—

(a) where the offender was under 18, he is or has been sentenced, in respect of the offence, to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

19

An offence under any of sections 4 to 6 of this Act (causing sexual activity without consent, rape of a child under 13, assault of a child under 13 by penetration).

20

An offence under section 7 of this Act (sexual assault of a child under 13) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

21

An offence under any of sections 8 to 12 of this Act (causing or inciting a child under 13 to engage in sexual activity, child sex offences committed by adults).

22

An offence under section 13 of this Act (child sex offences committed by children or young persons), if the offender is or has been sentenced, in respect of the offence, to imprisonment for a term of at least 12 months.

23

An offence under section 14 of this Act (arranging or facilitating the commission of a child sex offence) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced, in respect of the offence, to imprisonment for a term of at least 12 months.

24

An offence under section 15 of this Act (meeting a child following sexual grooming etc).

25

An offence under any of sections 16 to 19 of this Act (abuse of a position of trust) if the offender, in respect of the offence, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

26

An offence under section 25 or 26 of this Act (familial child sex offences) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

27

An offence under any of sections 30 to 37 of this Act (offences against persons with a mental disorder impeding choice, inducements etc. to persons with mental disorder).

28

An offence under any of sections 38 to 41 of this Act (care workers for persons with mental disorder) if —

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case, the offender, in respect of the offence or finding, is or has been—

(i) sentenced to a term of imprisonment,

(ii) detained in a hospital, or

(iii) made the subject of a community sentence of at least 12 months.

29

An offence under section 47 of this Act (paying for sexual services of a child) if the victim or (as the case may be) other party was under 16, and the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

30

An offence under section 61 of this Act (administering a substance with intent).

31

An offence under section 62 or 63 of this Act (committing an offence or trespassing, with intent to commit a sexual offence) if—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the intended offence was an offence against a person under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

32

An offence under section 64 or 65 of this Act (sex with an adult relative) if —

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case, the offender, in respect of the offence or finding, is or has been—

(i) sentenced to a term of imprisonment, or

(ii) detained in a hospital.

33

An offence under section 66 of this Act (exposure) if—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

34

An offence under section 67 of this Act (voyeurism) if—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

35

An offence under section 69 or 70 of this Act (intercourse with an animal, sexual penetration of a corpse) if —

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case, the offender, in respect of the offence or finding, is or has been—

(i) sentenced to a term of imprisonment, or

(ii) detained in a hospital.

Scotland

36

Rape at common law.

37

Clandestine injury to women.

38

Abduction of woman or girl with intent to rape.

39

Assault with intent to rape or ravish.

40

Indecent assault.

41

Lewd, indecent or libidinous behaviour or practices.

42

43

Sodomy, unless every person involved in the offence was 16 or over and was a willing participant.

44

45

An offence under section 52 of the Civic Government (Scotland) Act 1982 (c. 45) (taking and distribution of indecent images of children) 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

46

An offence under section 52A of that Act (possession of indecent images of children) 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

47

An offence under section 106 of the Mental Health (Scotland) Act 1984 (c. 36) (protection of mentally handicapped females).

48

An offence under section 107 of that Act (protection of patients).

49

An offence under section 1 of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) (incest), if a person (other than the offender) involved in the offence was under 18.

50

An offence under section 2 of that Act (intercourse with a stepchild), if a person (other than the offender) involved in the offence was under 18.

51

An offence under section 3 of that Act (intercourse with child under 16 by person in position of trust).

52

An offence under section 5 of that Act (unlawful intercourse with girl under 16), save in the case of an offence in contravention of subsection (3) of that section where the offender was under 20.

53

An offence under section 6 of that Act (indecent behaviour towards girl between 12 and 16).

54

An offence under section 8 of that Act (abduction of girl under 18 for purposes of unlawful intercourse).

55

An offence under section 10 of that Act (person having parental responsibilities causing or encouraging sexual activity in relation to a girl under 16).

56

An offence under section 13(5) of that Act (homosexual offences) unless every person involved (whether in the offence or in the homosexual act) was 16 or over and was a willing participant.

57

An offence under section 3 of the Sexual Offences (Amendment) Act 2000 (c. 44) (abuse of position of trust), where the offender was 20 or over.

58

An offence under section 311(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (non-consensual sexual acts).

59

An offence under section 313(1) of that Act (persons providing care services: sexual offences).

60

An offence in Scotland other than is mentioned in paragraphs 36 to 59ZL if the court, in imposing sentence or otherwise disposing of the case, determines for the purposes of this paragraph that there was a significant sexual aspect to the offender’s behaviour in committing the offence.

Northern Ireland

61

Rape.

62

An offence under section 52 of the Offences against the Person Act 1861 (c. 100) (indecent assault upon a female) if—

(a) where the offender was under 18, he is or has been sentenced, in respect of the offence, to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

63

An offence under section 53 or 54 of that Act (abduction of woman by force for unlawful sexual intercourse) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

64

An offence under section 61 of that Act (buggery) if—

(a) the offender was 20 or over, and

(b) the victim or (as the case may be) other party was under 18.

65

An offence under section 62 of that Act of assault with intent to commit buggery if the victim or (as the case may be) other party was under 18, and the offender —

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

66

An offence under section 62 of that Act of indecent assault upon a male person if—

(a) where the offender was under 18, he is or has been sentenced, in respect of the offence, to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

67

An offence under section 2 of the Criminal Law Amendment Act 1885 (c. 69) (procuration) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

68

An offence under section 3 of that Act (procuring defilement of woman by threats or fraud, etc.) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

69

An offence under section 4 of that Act of unlawful carnal knowledge of a girl under 14 if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

70

An offence under section 5 of that Act of unlawful carnal knowledge of a girl under 17, if the offender was 20 or over.

71

An offence under section 7 of that Act (abduction of girl under 18) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

72

An offence under section 11 of that Act (homosexual offences) if—

(a) the offender was 20 or over, and

(b) the victim or (as the case may be) other party was under 18.

73

An offence under section 1 of the Punishment of Incest Act 1908 (c. 45) (incest by males), if —

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim or (as the case may be) other party was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment, or

(b) detained in a hospital.

74

An offence under section 2 of that Act (incest by females), if—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim or (as the case may be) other party was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment, or

(b) detained in a hospital.

75

An offence under section 21 of the Children and Young Persons Act (Northern Ireland) 1968 (c. 34) (causing or encouraging seduction or prostitution of a girl under 17) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

76

An offence under section 22 of that Act (indecent conduct towards a child) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

77

An offence under Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (indecent photographs of children) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

78

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

79

An offence under Article 9 of the Criminal Justice (Northern Ireland) Order 1980 (S.I. 1980/704 (N.I. 6)) (inciting girl under 16 to have incestuous sexual intercourse) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

80

An offence under Article 122 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)) (offences against women suffering from severe mental handicap).

81

An offence under Article 123 of that Order (offences against patients) if—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case, the offender, in respect of the offence or finding, is or has been—

(i) sentenced to a term of imprisonment,

(ii) detained in a hospital, or

(iii) made the subject of a community sentence of at least 12 months.

82

An offence under Article 15 of the Criminal Justice (Evidence, etc.) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17) (possession of indecent photographs of children) if the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

83

An offence under section 3 of the Sexual Offences (Amendment) Act 2000 (c. 44) (abuse of position of trust), if the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

84

An offence under Article 19 of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13)) (buggery) if—

(a) the offender was 20 or over, and

(b) the victim or (as the case may be) other party was under 17.

85

An offence under Article 20 of that Order (assault with intent to commit buggery) if the victim was under 18 and the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months.

86

An offence under Article 21 of that Order (indecent assault upon a male) if—

(a) where the offender was under 18, he is or has been sentenced, in respect of the offence, to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

87

An offence under section 15 of this Act (meeting a child following sexual grooming etc.).

88

An offence under any of sections 16 to 19 of this Act (abuse of trust) if the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

89

An offence under section 47 of this Act (paying for sexual services of a child) if the victim or (as the case may be) other party was under 17 and the offender—

(a) was 18 or over, or

(b) is or has been sentenced in respect of the offence to a term of imprisonment of at least 12 months.

90

An offence under section 66 of this Act (exposure) if—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

91

An offence under section 67 of this Act (voyeurism) if—

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

92

An offence under section 69 or 70 of this Act (intercourse with an animal, sexual penetration of a corpse) if —

(a) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;

(b) in any other case, the offender, in respect of the offence or finding, is or has been—

(i) sentenced to a term of imprisonment, or

(ii) detained in a hospital.

Service offences

93

(1) An offence under—

(a) section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18),

(b) section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19), or

of which the corresponding civil offence (within the meaning of that Act) is an offence listed in any of paragraphs 1 to 35B.

(2) A reference in any of those paragraphs to being made the subject of a community sentence of at least 12 months is to be read, in relation to an offence under an enactment referred to in sub-paragraph (1), as a reference to being sentenced to a term of . . . detention of at least 112 days.

(3) In sub-paragraph (2), the reference to detention is to detention awarded under section 71(1)(e) of the Army Act 1955 or Air Force Act 1955 or section 43(1)(e) of the Naval Discipline Act 1957.

General

94

A reference in a preceding paragraph to an offence includes—

(a) a reference to an attempt, conspiracy or incitement to commit that offence, and

(b) except in paragraphs 36 to 43, a reference to aiding, abetting, counselling or procuring the commission of that offence.

95

A reference in a preceding paragraph to a person’s age is—

(a) in the case of an indecent photograph, a reference to the person’s age when the photograph was taken;

(b) in any other case, a reference to his age at the time of the offence.

96

In this Schedule “community sentence” has—

(a) in relation to England and Wales, the same meaning as in the Sentencing Code, and

(b) in relation to Northern Ireland, the same meaning as in the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)).

97

For the purposes of paragraphs 14, 44 and 78—

(a) a person is to be taken to have been under 16 at any time if it appears from the evidence as a whole that he was under that age at that time;

(b) section 7 of the Protection of Children Act 1978 (c. 37) (interpretation), subsections (2) to (2C) and (8) to (10) of section 52 of the Civic Government (Scotland) Act 1982 (c. 45), and Article 2(2) and (3) of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (interpretation) (respectively) apply as each provision applies for the purposes of the Act or Order of which it forms part.

98

A determination under paragraph 60 constitutes part of a person’s sentence, within the meaning of the Criminal Procedure (Scotland) Act 1995 (c. 46), for the purposes of any appeal or review.

SCHEDULE 4

Scope of Schedule

1

This Schedule applies where a relevant offender is subject to the notification requirements of this Part as a result of a conviction, finding or caution in respect of an offence under—

(a) section 12 or 13 of the Sexual Offences Act 1956 (c. 69) (buggery or indecency between men), or

(b) section 61 of the Offences against the Person Act 1861 (c. 100) or section 11 of the Criminal Law Amendment Act 1885 (c. 69) (corresponding Northern Ireland offences).

Application for decision

2

(1) The relevant offender may apply to the Secretary of State for a decision as to whether it appears that, at the time of the offence, the other party to the act of buggery or gross indecency—

(a) where paragraph 1(a) applies, was aged 16 or over,

(b) where paragraph 1(b) applies, was aged 17 or over,

and consented to the act.

The relevant offender may apply to the Department of Justice for a decision as to whether it appears that, at the time of the offence, the other party to the act of buggery, carnal knowledge or gross indecency consented to the act and—

(a) that other party was aged 16 or over, or

(b) where an offender is subject to the notification requirements of this Part as a result of a conviction, the offender was convicted or sentenced on the basis that the offender honestly believed that other party was aged 16 or over.

(2) An application must be in writing and state—

(a) the name, address and date of birth of the relevant offender,

(b) his name and address at the time of the conviction, finding or caution,

(c) so far as known to him, the time when and the place where the conviction or finding was made or the caution given and, for a conviction or finding, the case number,

(d) such other information as the Secretary of State may require.

(3) An application may include representations by the relevant offender about the matters mentioned in sub-paragraph (1).

Decision by Secretary of State

3

(1) In making the decision applied for, the Secretary of State must consider—

(a) any representations included in the application, and

(b) any available record of the investigation of the offence and of any proceedings relating to it that appears to him to be relevant,

but is not to seek evidence from any witness.

(2) On making the decision the Secretary of State must—

(a) record it in writing, and

(b) give notice in writing to the relevant offender.

Effect of decision

4

(1) If the Secretary of State decides that it appears as mentioned in paragraph 2(1), the relevant offender ceases, from the beginning of the day on which the decision is recorded under paragraph 3(2)(a), to be subject to the notification requirements of this Part as a result of the conviction, finding or caution in respect of the offence.

(2) Sub-paragraph (1) does not affect the operation of this Part as a result of any other conviction, finding or caution or any court order.

Right of appeal

5

(1) If the Secretary of State decides that it does not appear as mentioned in paragraph 2(1), and if the High Court gives permission, the relevant offender may appeal to that court.

(2) On an appeal the court may not receive oral evidence.

(3) The court—

(a) if it decides that it appears as mentioned in paragraph 2(1), must make an order to that effect,

(b) otherwise, must dismiss the appeal.

(4) An order under sub-paragraph (3)(a) has the same effect as a decision of the Secretary of State recorded under paragraph 3(2)(a) has under paragraph 4.

(5) There is no appeal from the decision of the High Court.

Interpretation

6

(1) In this Schedule a reference to an offence includes—

(a) a reference to an attempt, conspiracy or incitement to commit that offence, and

(b) a reference to aiding, abetting, counselling or procuring the commission of that offence.

(2) In the case of an attempt, conspiracy or incitement, references in paragraph 2 to the act of buggery, carnal knowledge or gross indecency are references to the act of buggery, carnal knowledge or gross indecency to which the attempt, conspiracy or incitement related (whether or not that act occurred).

(3) Sub-paragraphs (1) and (2) apply, with appropriate modifications, to an offence under Part 2 of the Serious Crime Act 2007 as they apply to the offence of incitement.

Transitional provision

7

Until the coming into force of the repeal by this Act of Part 1 of the Sex Offenders Act 1997 (c. 51), this Schedule has effect as if references to this Part of this Act were references to Part 1 of that Act.

SCHEDULE 5

England and Wales

1

Murder.

2

Manslaughter.

3

Kidnapping.

4

False imprisonment.

5

An offence under section 4 of the Offences against the Person Act 1861 (c. 100) (soliciting murder).

6

An offence under section 16 of that Act (threats to kill).

7

An offence under section 18 of that Act (wounding with intent to cause grievous bodily harm).

8

An offence under section 20 of that Act (malicious wounding).

9

An offence under section 21 of that Act (attempting to choke, suffocate or strangle in order to commit or assist in committing an indictable offence).

10

An offence under section 22 of that Act (using chloroform etc. to commit or assist in the committing of any indictable offence).

11

An offence under section 23 of that Act (maliciously administering poison etc. so as to endanger life or inflict grievous bodily harm).

12

An offence under section 27 of that Act (abandoning children).

13

An offence under section 28 of that Act (causing bodily injury by explosives).

14

An offence under section 29 of that Act (using explosives etc. with intent to do grievous bodily harm).

15

An offence under section 30 of that Act (placing explosives with intent to do bodily injury).

16

An offence under section 31 of that Act (setting spring guns etc. with intent to do grievous bodily harm).

17

An offence under section 32 of that Act (endangering the safety of railway passengers).

18

An offence under section 35 of that Act (injuring persons by furious driving).

19

An offence under section 37 of that Act (assaulting officer preserving wreck).

20

An offence under section 38 of that Act (assault with intent to resist arrest).

21

An offence under section 47 of that Act (assault occasioning actual bodily harm).

22

An offence under section 2 of the Explosive Substances Act 1883 (c. 3) (causing explosion likely to endanger life or property).

23

An offence under section 3 of that Act (attempt to cause explosion, or making or keeping explosive with intent to endanger life or property).

24

An offence under section 1 of the Infant Life (Preservation) Act 1929 (c. 34) (child destruction).

25

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