Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005
| Year | 2005 |
Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005
2005 asp 9
The Bill for this Act of the Scottish Parliament was passed by the Parliament on 2nd June 2005 and received Royal Assent on 12th July 2005
An Act of the Scottish Parliament to make it an offence to meet a child following certain preliminary contact and to make other provision for the purposes of protecting children from harm of a sexual nature, including provision for implementing in part Council Framework Decision 2004/68/JHA; and to make further provision about the prevention of sexual offences.
Meeting a child following certain preliminary contact
1 Meeting a child following certain preliminary contact
(1) A person ("A") commits an offence if—
(a) having met or communicated with another person ("B") on at least one earlier occasion, A—
(i) intentionally meets B;
(ii) travels, in any part of the world, with the intention of meeting B in any part of the world; or
(iii) makes arrangements, in any part of the world, with the intention of meeting B in any part of the world, for B to travel in any part of the world;
(b) at the time, A intends to engage in unlawful sexual activity involving B or in the presence of B—
(i) during or after the meeting; and
(ii) in any part of the world;
(c) B is—
(i) aged under 16; or
(ii) a constable;
(d) A does not reasonably believe that B is 16 or over; and
(e) at least one of the following is the case—
(i) the meeting or communication on an earlier occasion referred to in paragraph (a) (or, if there is more than one, one of them) has a relevant Scottish connection;
(ii) the meeting referred to in sub-paragraph (i) of that paragraph or, as the case may be, the travelling referred to in sub-paragraph (ii) of that paragraph or the making of arrangements referred to in sub-paragraph (iii) of that paragraph, has a relevant Scottish connection;
(iii) A is a British citizen or resident in the United Kingdom.
(2) In subsection (1) above—
(a) the reference to A's having met or communicated with B is a reference to A's having met B in any part of the world or having communicated with B by any means from or in any part of the world (and irrespective of where B is in the world); and
(b) a meeting or travelling or making of arrangements has a relevant Scottish connection if it, or any part of it, takes place in Scotland; and a communication has such a connection if it is made from or to or takes place in Scotland.
(3) For the purposes of subsection (1)(b) above, it is not necessary to allege or prove that A intended to engage in a specific activity.
(4) 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 10 years or a fine or both.
(5) Subsections (6A) and (6B) of section 16B of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39)
(which determines the sheriff court district in which proceedings against persons committing certain sexual acts outside the United Kingdom are to be taken) apply in relation to proceedings for an offence under this section as they apply to an offence to which that section applies.
Risk of sexual harm orders
2 Risk of sexual harm orders: applications, grounds and effect
(1) The chief constable of a police force may apply for an order under this section (a "risk of sexual harm order") in respect of a person who resides in the area of the police force or who the chief constable believes is in, or is intending to come to, that area if it appears to the chief constable that—
(a) the person has on at least two occasions, whether before or after the commencement of this section, done an act within subsection (5) below; and
(b) as a result of those acts, there is reasonable cause to believe that it is necessary for such an order to be made.
(2) An application under subsection (1) above may be made to any sheriff—
(a) in whose sheriffdom the person against whom the order is sought resides;
(b) in whose sheriffdom that person is believed by the applicant to be;
(c) to whose sheriffdom that person is believed by the applicant to be intending to come; or
(d) whose sheriffdom includes any place where it is alleged that that person did an act within subsection (5) below.
(3) An application under subsection (1) above shall be made by summary application.
(4) Such an application shall be made within—
(a) the period of 3 months beginning with the date on which the matter mentioned in subsection (1)(a) above appears to the applicant to be the case; or
(b) such longer period as the sheriff considers equitable having regard to all the circumstances.
(5) The acts referred to in subsections (1) and (2) above are—
(a) engaging in sexual activity involving a child or in the presence of a child;
(b) causing or inciting a child to watch a person engaging in sexual activity or to look at a moving or still image that is sexual;
(c) giving a child anything that relates to sexual activity or contains a reference to such activity;
(d) communicating with a child, where any part of the communication is sexual.
(6) On the application, the sheriff may make a risk of sexual harm order if satisfied that—
(a) the person against whom the order is sought has on at least two occasions, whether before or after the commencement of this section, done an act within subsection (5) above; and
(b) it is necessary to make such an order for the purpose of protecting children generally or any child from harm from that person.
(7) Such an order—
(a) prohibits the person against whom the order has effect from doing anything described in the order;
(b) subject to subsection below, has effect for a fixed period (not less than 2 years) specified in the order.
(8) The only prohibitions that may be imposed by virtue of subsection (7) above are those necessary for the purpose of protecting children generally or any child from harm from the person against whom the order has effect.
(9) Where a sheriff makes a risk of sexual harm order in relation to a person already subject to such an order (whether made by that sheriff or another), the earlier order ceases to have effect.
3 Interpretation of section 2
For the purposes of section 2 above—
(a) the references in that section to protecting children generally or any child from harm from a person are references to protecting them or it from physical or psychological harm caused by that person doing any of the acts within subsection (5) of that section;
(b) "child" means a person aged under 16;
(c) "image" means an image produced by any means and whether of a real or imaginary subject;
(i) any part of it relates to sexual activity; or
(ii) a reasonable person would, in all the circumstances, consider any part of the communication to be sexual;
(i) any part of it relates to sexual activity; or
(ii) a reasonable person would, in all the circumstances, consider any part of the image to be sexual.
4 RSHOs: variations, renewals and discharges
(1) Any of the persons within subsection (2) below may apply to the appropriate sheriff for an order varying, renewing or discharging a risk of sexual harm order.
(2) Those persons are—
(a) the person against whom the order has effect;
(b) the chief constable on whose application the order was made;
(c) the chief constable of the police force in the area of which the person against whom the order has effect resides;
(d) a chief constable who believes that that person is in, or is intending to come to, the area of the chief constable's police force.
(3) Subject to subsection (4) below, the sheriff—
(a) if satisfied, except where the application is made by the chief constable mentioned in subsection (2)(c) above, that the application has been intimated to that chief constable; and
(b) after hearing the person making the application and (if wishing to be heard) any of the other persons mentioned in subsection (2) above,
may make any order varying, renewing or discharging the risk of sexual harm order that the sheriff considers appropriate.
(4) A risk of sexual harm order may be renewed or varied so as to impose additional prohibitions only if it is necessary to do so for the purpose of protecting children generally or any child from harm from the person against whom the order has effect (and any renewed or varied order may contain only such prohibitions as are necessary for that purpose).
(5) Section 3 above applies for the purposes of this section.
(6) In this section, "the appropriate sheriff" means a sheriff—
(a) for the sheriffdom of the sheriff who made the risk of sexual harm order;
(b) in whose sheriffdom the person against whom the order has effect resides;
(c) in whose sheriffdom that person is believed by the applicant to be; or
(d) to whose sheriffdom that person is believed by the applicant to be intending to come.
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