Section 98: Notification orders: effect

197.     Section 98 provides that where an order is made, the offender will become subject to the notification requirements for the period set out in section 82 that applies to the sentence he received abroad. This period will run from the date of conviction or finding or caution abroad. So for example, if a person was convicted abroad of an offence equivalent to the domestic offence of sexual assault and sentenced to 6 months' imprisonment, the notification period for the sentence of 6 months would be 7 years. If the offender did not come to the UK until 5 years after the conviction, the notification requirements imposed under a notification order would only last for the remaining 2 of the 7 years since the date of conviction.

198.     The provisions of subsection (3) modify the notification provisions as they apply to people subject to notification orders.

199.     The effect of subsection (4) is that for people subject to notification orders, the initial obligation to provide details to the police will be within 3 days of the date of service of the order, and (subject to the other provisions in section 85 relating to annual notification) annually thereafter.

Section 99: Sections 97 and 98: relevant offences

200.     A relevant offence for the purposes of a notification order is an act constituting an offence abroad, which would also have amounted to one of the offences set out in Schedule 3 had it been committed in the UK. The defendant may require the police to show that his offence if committed in the UK would have constituted an offence listed in Schedule 3. Otherwise, this is deemed to be accepted.

Section 100: Interim notification orders

201.     Section 100 allows the police to apply for an interim notification order pending the application for a main order being heard. This may be, for example, because papers need to be obtained from a foreign country before the main application for a notification order can be determined. Subsections (5) and (6) provide that the offender will be subject to the notification requirements during the period of the interim notification order, with the notification period starting from the date of service of the order, as opposed to the date of the conviction etc. This means, for example, that the defendant will have to comply with the initial notification requirement (at section 83(1)) within 3 days of the service of the order, unless the period for compliance is extended to take into account any period during which the offender meets the conditions set out in section 83(6).

Section 101: Notification orders and interim notification orders: appeals

202.     Section 101 allows the offender to appeal to the Crown Court against the making of an interim or full notification order.

Section 102: Appeals in relation to notification orders and interim notification orders: Scotland

203.     Section 102 allows the offender to appeal against the making of an interim or full notification order in accordance with normal civil procedures. It also makes clear that where an appeal has been taken against an interlocutor any order can continue to have effect pending the appeal.

Section 103: Sections 97 to 100: Scotland

204.     Section 103 applies the notification order power to Scotland, subject to certain modifications. The procedure for the notification order mirrors the existing procedure for sex offender orders, so these modifications ensure that the procedure is consistent with this and with Scottish civil procedure. The police will apply for a notification order by summary application and a record of evidence is required to be kept by the clerk. This procedure is similar to that required for sex offender orders.

Section 104: Sexual offences prevention orders: applications and grounds

205.     Section 104 states the circumstances in which a sexual offences prevention order may be made against an offender. Sexual offences prevention orders are civil preventative orders designed to protect the public from serious sexual harm. These orders replace, with amendments, restraining orders and sex offender orders (provisions in relation to which are found at section 5A of the 1997 Act and sections 2 to 4 and section 20 of the 1998 Act respectively in relation to England, Wales and Scotland, and at Article 6 and 6A of the Criminal Justice (Northern Ireland) Order 1998).

206.     A court may make a sexual offences prevention order:

when it deals with a person in respect of an offence listed at Schedule 3 or Schedule 5 to the Act, or, in the case of a mentally incapacitated offender, deals with him in respect of a finding relating to such an offence; or

(in the case of a magistrates' court) when an application for such an order is made to it by a chief officer of police in respect of a person, and it is satisfied that:

the person has been dealt with by a court in respect of an offence listed in Schedule 3 (other than at paragraph 60) or at Schedule 5; or has been dealt with by a court abroad in respect of an act which was an offence under the law of that territory and which would, if committed in any part of the UK, have constituted an offence listed in Schedule 3 (other than at paragraph 60) or at Schedule 5; and that

the person's behaviour, since the date on which he was first dealt with in this way, means it is necessary to make the order "for the purpose of protecting the public or any particular members of the public from serious sexual harm from the offender".

207.     A chief officer of police may only make an application to a magistrates' court as described above if two conditions are met. These conditions are:

that the person has been dealt with in respect of an offence listed at Schedule 3 (other than at paragraph 60 of that Schedule) or at Schedule 5, or has been dealt with abroad in respect of an act which constituted an offence under the law of the territory in question, and which would, if committed in the UK, have constituted an offence listed at Schedule 3 (other than at paragraph 60) or at Schedule 5; and

that the person's behaviour, since the first date on which he was dealt with in this way (this will be relevant if for example an offender has been convicted of several offences listed in Schedule 3), gives rise to reasonable cause to believe that it is necessary for such an order to be made.

208.     The offences in Schedule 3 are all sexual offences, some of which are subject to thresholds in relation to age and sentence, below which the offence will not trigger a sexual offences prevention order. The offences in Schedule 5 are violent offences and various offences under this Act relating to trafficking and prostitution and child pornography. Schedule 5 includes murder as well as all the offences in Schedule 15 of the Criminal Justice Act 2003, which relates to the provisions in that Act dealing with "dangerous offenders".

209.     In its application to Scotland, section 104 essentially allows a chief constable to make an application for such an order in respect of persons convicted in the UK of a sexual offence set out in Schedule 3 (other than at paragraph 60 of that Schedule) or, where the person has a conviction from England, Wales or Northern Ireland, in respect of offences set out in paragraphs 1 to 63 of Schedule 5.

210.     The term "protecting the public in the United Kingdom or any particular members to the public from serious sexual harm from the defendant" is defined in subsection (3) of section 106. The court may be satisfied of this necessity either by the circumstances of the offence or from other evidence of the defendant's behaviour.

211.     An example of when the police might apply for a sexual offences prevention order is as follows. An offender has a conviction for sexual activity with a child and has been released after his term of imprisonment. Following his release he behaves in a way that suggests he is likely to offend again, for example by loitering around schools or inviting children back to his house. An application for a sexual offences prevention order is to be made by complaint. This is a civil procedure and the relevant procedure is set out at sections 51 to 57 of the Magistrates' Courts Act 1980.

Section 105: SOPOs: further provision as respects Scotland

212.     Section 105 does not affect the power set out at section 104. But it makes further specific provision for a sheriff in Scotland to grant a sexual offences prevention order on the application of a chief constable in certain circumstances.

213.     A chief constable may apply to a sheriff for an order under section 105 where he believes that a person is in, or is intending to come to the area of his police force, and that either:

the person has been dealt with by a court in respect of an offence which comes within paragraph 60 of Schedule 3, in that in dealing with him, the court determined that there was a "significant sexual aspect" to his behaviour; or

the person was dealt with by a court, before the commencement of this Part, in respect of an offence other than one listed at paragraphs 36 to 59 of Schedule 3, and it is likely that, had he been so dealt with after commencement, the court would have determined that his behaviour in committing the offence had a "significant sexual aspect; and

that the person's behaviour, since he was dealt with in respect of the offence, has been such that there is reasonable cause to believe that such an order is necessary.

214.     The sheriff may make an order under section 105 if he believes that it is necessary to do so to protect the public or any members of the public from serious sexual harm, and (in the case of a person who was dealt with in respect of an offence before the commencement of this Part) if he believes that there was a significant sexual aspect to the person's behaviour in committing the offence.

Section 106: Section 104: supplemental

215.     Subsection (5) to subsection (7) define the term 'qualifying offender' which applies in relation to orders made against offenders living in the community. This includes those who have a conviction, finding or caution for an offence overseas that is equivalent to one of the offences in Schedules 3 or 5.

Section 107: SOPOs: effect

216.     Subsection (1) of section 107 explains what an order does and for how long it lasts. An order may prohibit the offender from doing anything specified in it. Subsection (2) provides that the prohibitions contained within an order must be necessary "for the purpose protecting the public or any particular members of the public from serious sexual harm from the defendant". This phrase is defined in section 106(3). Prohibitions could include, for example, preventing an offender from contacting his victims or from taking part in sporting activities that involve close contact with children or from living in a household with girls under 16.

217.     The order must last for a minimum period of five years (subsection 1(b)). The period must be specified in the order but it may be an indefinite period and the period specified will not prevent a further order being made. However, subsection (6) operates to ensure an offender cannot be subject to more than one sexual offences prevention order at any one time.

218.     Subsection (3) provides that where an order is made against an offender who is already subject to the notification requirements, but the notification period applicable to him would end during the currency of the order, he is to remain subject to the notification requirements for the duration of the order. If the notification period attaching to a relevant conviction, finding or caution lasts for longer than the order, the offender will remain subject to the notification requirements for that longer period.

219.     Subsection (4) provides that where the offender is not subject to the notification requirements at the time an order is made, he will become subject to the notification requirements for the duration of the order.

220.     The effect of subsection (5) is that the notification period runs from the date of service of the order (not from the date of the relevant conviction, caution or finding). This means, for example, that the defendant will have to comply with the initial notification requirement (at section 83(1)) within 3 days of the service of the order.

Section 108: SOPOs: variations, renewals and discharges

221.     Section 108 enables either the offender subject to the order or the various chief officers of police listed in subsection (2) to apply for an order to be varied, renewed or discharged.

222.     The defendant might, for example, seek to vary an order if he finds the prohibitions are operating on him unduly harshly. He might apply for a discharge if he intended to emigrate. A chief officer of police who believes the defendant is moving to his area might apply for a variation if, for example, the order was made when the defendant was living in another part of the country and only restricted the defendant's behaviour in that original area.

223.     It may also be necessary to seek a renewal of an order at the time an existing order expires, where there is evidence that the defendant still requires the measures of restraint imposed in the original order.

224.     Subsection (8) provides that the procedure in this section will apply where variations, renewals and discharges are sought in respect of restraining orders and sex offender orders made prior to the commencement of this Part of the Act.

Section 109: Interim SOPOs

225.     Section 109 allows the police to apply for an interim sexual offences prevention order where an application has been made for a full order in respect of an offender living in the community. The purpose is to enable prohibitions to be placed on the offender's behaviour and to ensure that he will be subject to the notification requirements pending the application for the full order being determined. The interim order will be for a fixed period and will cease to have effect at the end of that period or, if earlier, when a decision is made on the full order.

226.     The effect of subsection (5) is that the defendant will be subject to the notification requirements for the duration of the order, with the notification period to run from the date of service of the order. This means, for example, that the defendant will have to comply with the initial notification requirement (at section 83(1)) within 3 days of the service of the order.

Section 110: SOPOs and interim SOPOs: appeals

227.     Section 110 provides for appeals against the making of an order or an interim order. The appeals process should be used where the offender is challenging the fact that an order has been imposed.

228.     Subsections (1) and (2) explain the process by which an appeal should be brought depending on the circumstances in which the order was made. Where an order was imposed on the court's dealing with an offender for an offence listed in Schedule 3 or Schedule 5, the offender should follow the usual appeal process that would apply if he were appealing against sentence. So, where the order was made in the Crown Court, the appeal against the order should be made to the Court of Appeal. Where the order was made in the magistrates' court or the youth court, the appeal is to the Crown Court.

229.     Where the order was made following an application by the police in respect of an offender in the community, the appeal will lie to the Crown Court.

230.     Subsection (5) relates to orders made by the Crown Court following an appeal against an order imposed on an offender in the community. It provides that the order made by the Crown Court is to be treated as if it was made by the magistrates' court that imposed the original order, for the purposes of determining where any application for variation, renewal or discharge should be heard (under section 108 or 109).

Section 111: Appeals in relation to SOPOs and interim SOPOs: Scotland

231.     Section 111 allows an offender in Scotland to appeal against the making of an interim or full order in accordance with normal civil procedures operating in Scotland. It also makes clear that where an appeal has been made the order can continue to have effect pending the appeal.

Section 112: Sections 104 and 106 to 109: Scotland

232.     Section 112 sets out how sections 104 and 106 to 109 are to be read for Scotland. The effect is that the procedure for SOPOs in Scotland mirrors that for notification orders and foreign travel orders in Scotland. So the procedures are consistent with each other and with Scottish civil procedure. Accordingly, a chief constable will apply for a SOPO by summary application and a record of evidence will be required to be kept by the clerk.

Section 113: Offence: breach of SOPO or interim SOPO

233.     Failure, without reasonable excuse, to comply with any prohibition in a sexual offences prevention order or an interim sexual offences prevention order is a criminal offence. Breach of any restraining order or sex offender order will also be an offence under this section.

Section 114: Foreign travel orders: applications and grounds

234.     Section 114 provides for a new civil, preventative order, the foreign travel order. The foreign travel order will enable the courts to prohibit persons who are "qualifying offenders" (essentially, those dealt with in respect of certain sexual offences against a child under 16 (either in this country or abroad)) from travelling abroad where and so far as it is necessary to do so to protect a child or children from serious sexual harm outside the United Kingdom.

235.     A foreign travel order may be made on application by the police to a magistrates' court and, if made, will place a prohibition on a sex offender from travelling abroad either to a named country or countries, to anywhere in the world other than a named country or to anywhere in the world.

236.     The police may apply for a foreign travel order at the same time as a sexual offences prevention order or separately.

237.     The term "qualifying offender" is defined at section 116. "Appropriate date" is defined in subsection (5) of section 115 and means the first date on which the offender was dealt with in respect of an offence in subsection (1) or (3) of section 116. The phrase "the purpose of protecting children generally or any child from serious sexual harm from the defendant outside the United Kingdom" is defined in section 115(2).

238.     Subsection (3) sets out the circumstances in which the court may make an order.

Section 115: Section 114: interpretation

239.     Section 115 defines certain terms used in section 114. Subsection (6) provides that, in the application of sections 115 and 116 to Northern Ireland, any reference to a child under 16 is to be taken to mean a child under 17.

Section 116: Section 114: qualifying offenders

240.     Section 116 defines "qualifying offenders" for the purposes of a foreign travel order. Subsection (1) states that a "qualifying offender" is a person convicted of an offence listed at subsection (2), or found not guilty of it by reason of insanity, or found to be under a disability and to have done the act charged in respect of it, or cautioned in respect of it.

241.     Subsection (2)(a) lists a number of offences from Schedule 3 that deal with taking, making and distributing indecent photographs, or pseudo-photographs, of children under 16. Subsection (2)(b) refers to the offence of trespassing with intent to commit a sexual offence, where the intended offence was against a person under 16. Subsection (2)(c) refers to service offences which correspond to certain civilian sexual offences listed in Schedule 3. Subsection (2)(d) refers to an offence within any other paragraph of Schedule 3, where the victim was under 16.

242.     Subsection (3) provides that a person also becomes a 'qualifying offender' if he is convicted of a 'relevant offence' committed outside the UK, or found not guilty of such an offence by reason of insanity, or found to have been under a disability and to have done the act charged in respect of such an offence, or cautioned in respect of such an offence. Whether he was so dealt with before or after the commencement of this Part of this Act is irrelevant.

243.     A 'relevant offence' in this context is defined in subsection (4) as an act that was an offence in the country where it was committed, and which would have fallen within subsection (2) had it been committed in any part of the United Kingdom.

244.     Subsection (5) provides that if the law of the foreign country in which an act is committed provides that it is to be punishable, then that act is an offence under the law of that country, however it is described in that law.

245.     Subsection (6) and subsection (7) relate to the procedures to be adopted in satisfying the court that an act committed in a country other than the UK would have constituted an offence within subsection (2) if it had been done in any part of the UK. Subsection (6) provides that, unless the defendant serves a notice on the prosecution, (in the manner specified), requesting that the prosecution proves this to be the case, it will be assumed that the act would have constituted an offence within subsection (2) if done in any part of the UK. Subsection (7) permits the court to allow the defendant to require such proof from the prosecution even if he has failed to serve a notice as required by subsection (6).

Section 117: Foreign travel orders: effect

246.     Section 117 sets out the effect of a foreign travel order. Subsection (1) provides that the duration of the order will not exceed six months and will be specified in the order. Subsection (2) provides that the order may prohibit the subject from travelling to a country outside the UK named in the order (such as Thailand and Malaysia); or from travelling to any country outside the UK that is not named in the order (for example, this may be needed where the offender is banned from travelling anywhere in the world other than to a named country which he may need to visit for family reasons); or from travelling to any country outside the UK (where the offender is such a risk to children that a universal ban is required). Subsection (4) provides that if, while a foreign travel order is in force, the defendant is not a 'relevant offender' i.e. is not subject to the notification requirements of this Part of the Act, he must comply with any regulations made under section 86(1) (i.e. regulations imposing notification requirements relating to foreign travel). In practice, however, in the vast majority of cases the offender is likely already to be subject to all of the notification requirements by virtue of his conviction for a sexual offence against a child.

Section 118: Foreign travel orders: variations, renewals and discharges

247.     Section 118 sets out provisions permitting the variation, renewal or discharge of a foreign travel order. A defendant may wish to apply for a variation of an order if for example the order prohibits him from travelling to Romania but during the course of the order he has to attend an urgent business meeting in Romania. The police may wish to apply for a renewal of an order if, on the expiry of the previous order, they still have cause to believe that the defendant poses a risk of serious sexual harm to children abroad. Subsection (5) provides that an application for variation, renewal or discharge may be made to the court which made the original order; or to a magistrates' court in the area where the subject of the order resides (this will probably generally be the case where the subject of the order is making the application); or to any magistrates' court in the police area of the chief officer making the application. Subsection (3) provides that the court that hears the application must hear any person mentioned in subsection (2) who wishes to be heard. Having done so, it may make any order it considers appropriate in the light of the restrictions in subsection (4). Subsection (4) provides that any additional prohibitions imposed on the subject must be necessary for the purpose of protecting children generally or any child from serious sexual harm from the defendant.

Section 119: Foreign travel orders: appeals

248.     This section provides a right of appeal to the Crown Court against the making of a foreign travel order. Subsection (1) provides that such an appeal may be against either the making of an order, or against the making of an order varying, renewing or discharging a foreign travel order, or against the refusal to make such an order. Subsection (3) provides that any order made by the Crown Court, on an appeal against the making of a foreign travel order, will be deemed to be an order of the magistrates' court for the purposes of subsequent applications to vary, renew or discharge the order.

Section 120: Appeals in relation to foreign travel orders: Scotland

249.     Section 120 sets out the appeals mechanism for such orders in Scotland. It also provides that during such an appeal the foreign travel order will remain in force.

Section 121: Sections 114 to 118: Scotland

250.     This clause sets out the manner in which the foreign travel order regime is to apply in Scotland. The procedures for the foreign travel order mirror the proposed procedure for notification orders in Scotland so as to ensure that the procedures are consistent with each other and with Scottish civil procedure. Accordingly in subsection (1) the chief constable is required to apply for a foreign travel order by summary application.

Section 122: Offence: breach of foreign travel order

251.     Section 122 makes it an offence for the offender to breach any prohibition contained within a foreign travel order without reasonable excuse. Subsection (3) provides that a court cannot make a conditional discharge (or a probation order in Scotland) where someone is convicted of this offence.