Section 79: General interpretation

148.     Section 79 gives a number of definitions relevant to offences in this Part. Subsection (2) is needed so that where, for example, a person consents at the time of entry to penetration, but then withdraws his consent and the penetration continues, the person penetrating may be guilty of rape or assault by penetration.

Part 2: Notification and Orders

Section 80: Persons becoming subject to notification requirements

149.     Sections 80 to 92 re-enact, with amendments, Part 1 of the Sex Offenders Act 1997(the 1997 Act), which established a requirement on sex offenders to notify certain personal details to the police. This process is commonly known as "registration", and often referred to loosely as creating a "sex offenders' register". Sections 80 and 81 set out the persons who are required to comply with the notification requirements. Such a person is referred to as a "relevant offender" (subsection (2)).

150.     Subsection (1) provides that notification requirements apply to a person who is dealt with by a court, in any of the ways specified in the subsection (which include conviction), in respect of an offence specified in Schedule 3.The offences in Schedule 3 are exclusively sexual offences, and include the offences that were listed in the corresponding section of Schedule 1 of the 1997 Act. In relation to England, Wales and Northern Ireland, Schedule 3 also includes various offences under Part 1 of this Act. A number of the offences in Schedule 3 are subject to age and sentence thresholds beneath which the offence will not trigger the notification requirements.

151.     In relation to section 80 (and Part 2 generally) a "conviction" includes a conviction after commencement which results in a conditional but not an absolute discharge: section 134 provides that in relation to an order for a conditional discharge, the legislation that deems a conviction with an absolute or conditional discharge not to be a conviction, does not apply in relation to this Part of the Act. The term "convicted" as it applies to mentally disordered offenders is explained at section 135(1) and (2). The reference at subsection (1)(c) is further explained at section 135(3).

152.     Subsection (1)(d) refers to a person who is cautioned for a relevant offence. Section 133 provides that the term "caution" includes a reprimand or warning given under section 65 of the Crime and Disorder Act 1998 (the 1998 Act). These reprimands and warnings are given to young offenders.

Section 81: Persons formerly subject to Part 1 of the Sex Offenders Act 1997

153.     Section 81 provides that, on commencement of this Part of the Act, offenders previously subject to the notification requirements of the 1997 Act by virtue of a conviction, relevant finding or caution for an offence listed in Schedule 3 of this Act, will be subject to the notification requirements of this Part unless their period of notification ended before commencement. Subsections (3) to (6) replicate the partially retrospective provisions of the 1997 Act, so that, save in specified circumstances, convictions, findings and cautions that pre-date 1 September 1997 (the date of commencement of the 1997 Act) will not trigger the notification requirements. Subsections (7) and (8) relate to persons who immediately before commencement of this Part were subject to a sex offender order or an interim sex offender order in England, Wales, Northern Ireland or Scotland, or a restraining order in England and Wales. These orders all impose the notification requirements under the 1997 Act. Such persons will, from commencement, become subject to the notification requirements of this Part of this Act until the order ceases to have effect.

Section 82: The notification period

154.     Section 82 sets out the period during which a relevant offender will be subject to the notification requirements. In the most serious cases, as reflected in the sentence passed for the offence, the person will be subject to the requirements for an indefinite period, which means the rest of his life. In less serious cases, the offender will be subject to the requirements for a fixed period. For example, where after commencement a person is cautioned for a relevant offence, the notification period is two years.

155.     The notification period starts from the date of conviction, finding or caution. This is called the 'relevant date' (subsection (6)). The 'relevant date' in relation to offences in Schedule 3 that are subject to sentence thresholds is set out in section 132.

156.     Subsection (2) provides that, where an adult would be subject to the notification requirements for a determinate period (that is ten, seven, five or two years), that period will be halved in the case of an offender who is under 18 on the relevant date (that is, the date of conviction, relevant finding or reprimand or final warning).

157.     Subsections (3) and (4) set out how to calculate the notification period where an offender is sentenced for more than one Schedule 3 offence and these sentences are terms of imprisonment running consecutively or partly concurrently. Where the terms are consecutive, they are to be added together. For example, where an offender is sentenced to 3 months' imprisonment for one relevant offence and 10 months' imprisonment for another such offence, to run consecutively, the sentence would be treated as 13 months' imprisonment for the purposes of working out the notification period (in this case, 10 years). Terms will be partly concurrent when they are imposed on different occasions. An example would be where an offender is sentenced to 10 years' imprisonment for a Schedule 3 offence, and 6 years into this term he is sentenced to 12 years' imprisonment for a second Schedule 3 offence. Where this is the case, the notification period is based on the combined length of the terms minus any overlapping period. In the example given, the combined length of the sentences would be 22 years and the overlapping period would be the remaining 4 years of the 10-year sentence. So the sentence for the purposes of working out the notification period would be 18 years.

158.     Subsection (5) relates to the situation where there is an initial finding that a person is under a disability and has done the act charged and he is later tried for the offence. An example would be where such a finding was made, the person was admitted to hospital under a restriction order and the notification requirements would therefore apply for an indefinite period. Where such a person was subsequently tried for the offence, the indefinite notification period will cease to apply as from the end of the trial. If the person is convicted and sentenced to, say, 12 months' imprisonment for the offence, the new notification period would be 10 years, starting from the date of the conviction. If the person is acquitted at trial, the person ceases to be subject to the notification requirements in respect of that matter.

Section 83: Notification requirements: initial notification

159.     Section 83 sets out the information the offender needs to supply to the police when he first makes a notification and the time scales within which he is required to provide that information.

160.     Subsection (2) relates to a case where someone who is dealt with by a court in one of the ways specified at subsection 80(1) is, at the date of being so dealt with, already subject to the notification requirements by virtue of an earlier conviction or finding or caution in respect of a Schedule 3 offence., If, in these circumstances, at the date of being dealt with by the court, the person has complied with subsection (1) in respect of the earlier conviction or finding or caution, he does not need to notify his details again in accordance with subsection (1). This is only the case, however, where the notification period in respect of the earlier conviction, finding or caution lasts throughout the period specified at subsection (1) (as extended in accordance with subsection (6) - see below - if appropriate).

161.     Subsection (4) makes similar provision in respect of persons who are already subject to the notification requirements at the time when a notification order (as defined in section 97) is made.

162.     Subsection (3) provides that the obligation imposed by subsection (1) does not apply to a person who, on commencement, in relation to a pre-commencement conviction, finding, caution or order, has complied with the obligation to notify his name and address to the police under section 2(1) of the 1997 Act. Where a person subject to the requirements of the 1997 Act has not complied with section 2(1) of that Act, he must, under subsection (1), notify the police of the details in subsection (5) within 3 days of commencement of Part 2 of the Act.

163.     The details in subsection (5) include the offender's home address. The term 'home address' is defined in subsection (7). This provides that where an offender is homeless or has no fixed abode his 'home address' means an address or location where he can be regularly found. This might, for example, be a shelter, a friend's house, a caravan or a park bench.

164.     In calculating the period within which an offender must give notification under subsection (1), any time when the offender meets the conditions specified in subsection (6) - for instance, any time when he is serving a sentence of imprisonment - does not count.

Section 84: Notification requirements: changes

165.     Section 84 sets out the requirements on a relevant offender to notify the police of changes to notified details. Under subsection (1)(c) an offender must notify the police within 3 days, of the address of any premises he has stayed at within the UK, besides his home address, for a 'qualifying period'. This place might be a friend or relative's house or a hotel where he has stayed. A qualifying period is defined at subsection (6) and is a period of 7 days, or two or more periods, in any twelve months, which taken together amount to 7 days.

166.     Subsection (2) allows an offender to notify the police of any change to his notified details (his name, address or having stayed away from home for 7 or more days) in advance of such change. The advance notification must give a date when the change is expected to occur.

167.     Subsections (3) and (4) deal with the scenario in which the change does not take place as notified in advance. As long as the change takes place no earlier than 2 days before the date notified or no later than 3 days after the date notified, the offender need not update the police as to the actual date on which the change took place. However, where the change takes place outside this period, the person must notify the change in accordance with subsection (1), that is, within 3 days of the actual change. And, where the change takes place 3 days or more after the date specified, the person must also notify the police (within 6 days of the date specified) that the information he notified in advance is no longer correct.

168.     The effect of subsection (5) is that time when an offender is in custody, detained or abroad (as provided at subsection (6) of section 83), will be disregarded for the purpose of determining the 3 day period specified in subsection (1) and the 6 day period specified in subsection (4)(b).

Section 85: Notification requirements: periodic notification

169.     Section 85 provides (at subsection (1)) that an offender must re-notify the police of the details set out in subsection (5) of section 83 within one year after each of the specified events, unless during this period he re-notifies, because of a change of circumstances, under section 84.

170.     The specified events are:

     the commencement of this Part of the Act;

     any notification the offender has given under subsection (1) of section 83 or 85; and

     any earlier notification the offender has given under subsection (1).

171.     Commencement will only be a trigger for this periodic notification requirement where a person is exempt from complying with subsection (1) of section 83 by reason of subsection (2), (3) or (4) of section 83 (i.e., where the person has complied with an earlier initial notification requirement).

172.     This means that where a person becomes subject to the notification requirements for the first time and does not change his name or address and does not stay away from home for 7 days or more, he will have to re-notify within a year of his initial notification and annually thereafter. Where a person does notify his having stayed away from home for 7 days, for example, he will have to re-notify the police of the information set out in subsection (5) of section 83 within a year of giving the notification of having stayed away from home. And, if within that year he notifies another period spent away from home, or a change of name or address, the re-notification of the details set out in section 83(5) will be put back to a year after that latter notification.

173.     Subsection (3) provides that where a relevant offender is detained or abroad in the ways provided at subsection (4) at the time the periodic notification requirement falls due, the person may give that notification up to 3 days after he is released from the detention specified in subsection (4) or returns to the UK.

Section 86: Notification requirements: travel outside the United Kingdom

174.     Subsection (1) of section 86 provides a power for the Secretary of State to make regulations setting out notification requirements for relevant offenders who leave the UK or for any description of such offenders (for example those intending to leave the UK for a specified period). The regulations would oblige such persons to notify certain details concerning their travel plans to the police.

175.     Subsection (4) might be used for example to make provision for young offenders to notify for a different period of foreign travel than do other offenders

176.     These regulations are subject to the affirmative resolution procedure (section 138(2)). For Scotland, the regulations will be made by Scottish Ministers and laid before the Scottish Parliament.

Section 87: Method of notification and related matters

177.     Section 87 describes how and where an offender is required to notify information to the police under the sections relating to initial notification, change of details and periodic notification. It provides a power for the Secretary of State to make regulations specifying the police stations at which an offender may notify the police of the relevant information. For Scotland the regulations will be made by Scottish Ministers and laid before the Scottish Parliament. The regulations will prescribe one or more police stations for each police area and where more than one has been prescribed for a particular offender's area, that offender may notify at any one of them. The term 'local police area' is defined in subsection (3) of section 88. Where the notification relates to having stayed away from a home address for 7 days or more or to a prospective change of address, the offender may use a police station within the police area of that other address (subsection (2)). When making a notification, other than a notification of foreign travel, the police may take the person's fingerprints and/or a photograph (subsection (4)). The term "photograph" is explained at subsection (2) of section 88 and, because subsection (4)(b) of section 87 refers to a photograph of any part of the person, it will include an iris scan.

Section 88: Section 87: interpretation

178.     Subsection (3) of section 88 defines "local police area". Subsection 3(b) and (c) deal with cases where the offender has no home address (as defined in subsection (7) of section 83). He may have no home address because for example he spends most of his time abroad and only returns to the UK occasionally, or because he is itinerant.

Section 89: Young offenders: parental directions

179.     Section 89 provides that, in the case of a young offender, the court may direct a person with parental responsibility for the offender to comply with the notification requirements in place of the offender until either the offender attains the relevant age (18 in England, Wales and Northern Ireland and where the offender is dealt with by a service court; 16 in Scotland) or until an earlier date specified by the court. The court may make the direction at the time it deals with the offender in respect of an offence or finding which triggers the notification requirements, or when it makes an order which imposes those requirements. Subsections (4) and (5) also allow the police to apply to the court for a parental direction to be made. This will cover cases where the court, for whatever reason, did not make a direction at the stage referred to above but an order now seems appropriate. It will also cover cases where the young offender has received a reprimand or final warning for a Schedule 3 offence.

Section 90: Parental directions: variations, renewals and discharges

180.     Section 90 provides that a court may vary, renew or discharge a parental direction. This may be required where, for example, there is a direction that the father notifies on behalf of the young offender and the father subsequently becomes divorced from the mother and the offender goes to live with the mother. Or an order may need to be discharged where, for example, the parent can no longer control the young offender and is unable to ensure that he attends with the parent to notify. In these circumstances the court may consider that the liability for his failure to attend should revert to the young offender himself. Subsections (2)(e) and (3)(a) and (b) draw an explicit distinction between parental directions imposed by criminal courts and civil courts in Scotland in terms of the procedures and circumstances where such directions can be varied, renewed and discharged in Scotland.

Section 91: Offences relating to notification

181.     Subsection (3) provides that the offence of failing to give a notification continues throughout the period during which the required notification is not given. An offender cannot be prosecuted more than once for the same failure. However, if an offender fails to comply with a requirement, is convicted for this offence and then fails to comply again in respect of the same requirement, he commits a new offence and may be prosecuted again.

182.     An offence will not be committed where the person has a "reasonable excuse" for failure to comply with a notification requirement. This might be, for example, where an offender does not provide the information in the required time scale because he is in hospital following an accident. In respect of an offence relating to subsection (2)(b) of section 89 a reasonable excuse might be that the parent took all reasonable steps to persuade the young offender to accompany him to the police station.

Section 92: Certificates for the purposes of Part 2

183.     Section 92 provides that when a court convicts or makes a relevant finding in respect of a person in relation to a Schedule 3 offence, or when a person is cautioned by the police, the court or police officer may issue a certificate that will be evidence of the conviction or finding or caution for a relevant offence and of the notification requirements which follow from it. Subsection (4) provides a power for the Secretary of State to prescribe by order the form certificate that will need to be issued by a police officer when a caution is given. These regulations will be subject to the negative resolution procedure (section 138(3)). Whilst the Regulations are in respect of cautions in England and Wales, a certificate made as a result of a caution will be sufficient evidence of that fact in a Scottish court.

Section 93: Abolished homosexual offences

184.     Section 93 gives effect to Schedule 4 to the Act. Schedule 4 introduces a procedure whereby the Secretary of State may remove the notification requirement from offenders convicted of buggery and indecency between men (sections 12 and 13 of the Sexual Offences Act 1956) or convicted of attempting, inciting or conspiring to commit these offences or of aiding, abetting, counselling or procuring the commission of the offences. This procedure is necessary because in some cases, a man will be subject to the notification requirements in relation to consensual homosexual activity with a man who was aged 16 or over at the time of the offence.

Section 94: Part 2: supply of information to Secretary of State etc. for verification

185.     Sections 94 and 95 provide the power to enable the police to verify that an offender has notified the correct details in compliance with sections 83, 84 and 85 of this Act or with the relevant sections of the Sex Offenders Act 1997, and that he is not omitting any details (such as another name or address he uses). This will be done by comparing the details provided at notification against information the offenders will have provided to certain bodies performing Government functions.

186.     Subsection (3) describes the police, and policing organisations having the power to supply this information. Subsections (2) and (8) describe the bodies to whom the information may be supplied. These are those bodies which perform social security, child support, employment and training functions on behalf of the Secretary of State for the Department of Work and Pensions (DWP) and the equivalent Northern Ireland Department, those who perform functions in relation to passports on behalf of the Home Secretary, and those who perform functions under Part 3 of the Road Traffic Act 1988 on behalf of the Secretary of State for the Department of Transport (i.e. the Driver and Vehicle Licensing Agency) or Part 2 of the Road Traffic (Northern Ireland) Order 1981. By virtue of subsection (2)(c), section 94 also allows for the supply of information to persons providing services to the Secretary of State in connection with these functions i.e. an executive agency or private company.

187.     By virtue of subsection (1), the details the police may provide to these bodies are an offender's date of birth, national insurance number, any names he has notified, and his home address and any other addresses notified. This information may have been supplied by an offender at his initial notification, when notifying a change, or at his periodic notification.

188.     Subsection (4) provides that this information may only be shared for the purpose of verifying that the information supplied to the police etc. by the offender is accurate and for the purpose of compiling a report of the comparison. It could not, for example, be used by DWP to pursue someone for a child support payment.

189.     This section applies to Northern Ireland, the only difference being that the police may supply information to the Department for Social Development, the Department of the Environment or the Department for Employment and Learning in Northern Ireland or to a person providing services to these Departments in connection with a "relevant function".

190.     Subsection (6) provides that any transfer of data must comply with the Data Protection Act 1998.

Section 95: Part 2: supply of information by Secretary of State etc.

191.     Section 95 provides that the report complied under subsection (4)(b) of section 94 may be provided to the police (and the police organisations stated in subsection (2)). The police may retain the information and use it in the prevention, detection, investigation or prosecution of offences but for no other purpose. This would include an offence under section 91 of failing to comply with the notification requirements or by providing false information at notification (Subsection (4)). In addition, the information may be used to prevent, detect, investigate or prosecute other offences: for example, information that identified the possible whereabouts of an offender who was wanted for robbery could be used by the police in investigating that offence.

Section 96: Information about release or transfer

192.     This section re-enacts, with amendments, section 5B of the 1997 Act. Section 96 allows the Secretary of State to make regulations requiring those who are responsible for an offender while he is in detention (as defined in subsection (1)) to notify other relevant authorities of his release or transfer to another institution. The regulations may define the person responsible for the offender (for example, the Chief Executive of a hospital) and the person who must be informed about release and transfer. An example might be the governor of a prison being required to inform the local chief officer of police when a relevant offender is about to be released from his prison. These regulations will be subject to the negative resolution procedure (section 138(3)). For Scotland, the regulations will be made by Scottish Ministers and laid before the Scottish Parliament.

Section 97: Notification orders: applications and grounds

193.     Section 97 provides a power for the police to apply to the magistrates' court for an order making an offender who has been convicted, cautioned or had a relevant finding made against him, in respect of a "relevant offence" (defined in subsection (1) of section 99) abroad, subject to the notification requirements.

194.     The chief officer of police may apply for an order if the defendant resides in his police area or the chief officer believes that the person is currently in or is intending to come to his police area. The "intending to come to" limb will cover for example a person who is in France but who the chief officer of Kent believes has plans to arrive at Dover within the next few days. A notification order might, for example, be sought in respect of a UK citizen who has been convicted of a sexual offence overseas and who is deported to the UK on release from prison abroad. The police could also apply for a notification order in respect of a foreign citizen who the police know has been convicted of a sex offence in his or her own country and who comes to the UK.

195.     The provisions in subsection (3) reflect the partially retrospective arrangements that apply in respect of the application of the notification requirements to people with convictions etc. in the UK (see section 81). The relevant conviction, finding or caution abroad must have taken place on or after 1 September 1997, which was the commencement date for the 1997 Act. Findings or convictions that occurred before that date will only be a trigger for a notification order where the person had yet to be dealt with on 1 September 1997 or was still serving a sentence or was subject to supervision or otherwise detained in respect of that offence on that date.

196.     The effect of subsection (4) is that an order may not be made where the notification period (the period for which an offender is to be subject to the notification requirements), calculated from the date of conviction or finding or caution abroad, has expired. So where, for example, a person is cautioned abroad after commencement for a relevant offence (the notification period for a post-commencement caution is 2 years), the court may not make a notification order against that person if he comes to the UK more than 2 years after receiving the caution. Clause 103 provides certain modifications to clause 99 to ensure that the provisions contained therein reflect Scottish procedures, practices and references.