Modification of schedule 1 (relevant offences) to the Protection of Vulnerable Groups (Scotland) Act 2007

article 10 of The Protection of Vulnerable Groups (Scotland) Act 2007 (Relevant Offences) (Modification) Order 2010

Status not determined
Strict liability
Set by another provision
Sexual offences and indecent or obscene material

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

10 After paragraph2(e) insert— ea commits an offence under section83 (offence of ill treatment and wilful neglect) of the Adults with Incapacity (Scotland) Act 2000 (asp4) in relation to
a child, eb commits an offence under section311(1) and (2)(a) (non‑consensual sexual acts) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp13) in relation to
a child where the conviction is in summary proceedings, ec commits an offence under section311(1) and 2(b) (non‑consensual sexual acts) of that Act in relation to
a child, ed commits an offence under section313 (persons providing core services: sexual offences) of that Act in relation to
a child, ee commits an offence under section315 (ill treatment and wilful neglect of mentally disordered person) of that Act in relation to
a child, ef commits an offence under section4 (trafficking people for exploitation) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c.19) in relation to
a child, eg commits an offence under section1 (offence of female genital mutilation) of the Prohibition of Female Genital Mutilation (Scotland) Act 2005 (asp8) in relation to
a child, eh commits an offence under section3 (aiding and abetting female genital mutilation) of that Act in relation to
a child, ei commits an offence under section3(1) and 2(a) (sexual assault by penetration of the vagina, anus or mouth by any means) of the Sexual Offences (Scotland) Act 2009 (asp9) in relation to
a child where the conviction is in summary proceedings, ej commits an offence under section 3(1) and (2)(b) to (e) (sexual assault) of that Act in relation to
a child, ek commits an offence under section 4 (sexual coercion) of that Act in relation to
a child, el commits an offence under section 5 (coercing
a person into being present during
a sexual activity) of that Act in relation to
a child, em commits an offence under section 6 (coercing
a person into looking at
a sexual image) of that Act in relation to
a child, en commits an offence under section 7 (communicating indecently etc.) of that Act in relation to
a child, eo commits an offence under section 8 (sexual exposure) of that Act in relation to
a child, ep commits an offence under section 9 (voyeurism) of that Act in relation to
a child, eq commits an offence under section 11 (administering
a substance for sexual purposes) of that Act in relation to
a child, er commits an offence under section46 (sexual abuse of trust of
a mentally disordered person) of that Act in relation to
a child. .

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds: a person
Conduct: breaching the provision
Fault element: Strict liability
Burden of proof: No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach article 10?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

Doing what the provision prohibits, or failing to do what it requires under the Protection of Vulnerable Groups (Scotland) Act 2007 (Relevant Offences) (Modification) Order 2010.

Penalty

Mode of trial: Set by another provision — the instrument states the penalty by reference to an Act or to another regulation
Maximum fine: Not determined
Maximum prison (summary): Not determined

The instrument does not state a penalty itself. It sets one by reference to section 9 (voyeurism) of that Act.

penalty is that of the referenced enactment; not stated in this instrument.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Reduction in sentence for a guilty plea: definitive guideline All courts in England and Wales · in force from 1 June 2017
The sliding scale of credit for pleading guilty, from one third at the first stage of proceedings downwards.
General guideline: overarching principles All courts in England and Wales · in force from 1 October 2019
The guideline a court uses when there is no offence-specific guideline, which is the position for the overwhelming majority of offences created by statutory instrument. It sets out how culpability and harm are assessed from first principles.
Totality: definitive guideline All courts in England and Wales
How to sentence more than one offence at once so that the total is just and proportionate - frequently in point here, because regulatory prosecutions commonly charge several breaches of the same instrument.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status: Status not determined
Made: 9 June 2010
In force from: Not determined
Extent: Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

This Order is made under sections 32(2) and 100(2) of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp14) (“the Act”). Section 32(1) defines a relevant offence for the purposes of Part 1 of the Act. A relevant offence is an offence listed in schedule 1 to the Act. Under section7(1) of the Act, a court is required to refer to the Scottish Ministers an individual who is convicted of a relevant offence and under section 11 of the Act the Scottish Ministers are required to consider the individual for listing in the children’s list. In exercise of the power in section 32(2), this Order modifies schedule 1 to the Act in order to modify the circumstances in which an individual is to be treated for the purposes of Part 1 of the Act as having committed a relevant offence. Articles 3 to 6 modify paragraph 1 of schedule 1 which lists offences which can only be committed against a child. Paragraph 1(g) is omitted as this offence is being moved to paragraph2 of schedule 1 since a step-child under the Criminal Law Consolidation (Scotland) Act 1995 (c.39) is a child up to the age of 21 (articles 3 and 9). Article 4 is a consequential modification as a result of the modification of article 3. Section 5(1) of the Criminal Law Consolidation (Scotland) Act 1995 is now included in the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010 (SSI 2010/), (“Automatic Listing Order”) but sections5(2) and (3) remain as relevant offences (article 5). Article 6 includes offences under the Sexual Offences (Scotland) Act 2009 (asp 9) and inchoate and art and part offences in respect of offences listed in paragraph 1 of schedule 1 to the Act or listed in specified paragraphs of the Automatic Listing Order; it also makes provision for repealed offences which are similar to those in paragraph 1 of schedule 1 to the Act under which historic conduct might still be prosecuted. Articles 7 to 11 modify paragraph 2 of schedule 1 to the Act which lists offences which are not necessarily committed against children, but which are qualified for the purposes of the Act as having a child victim. Article 7 inserts the offence of culpable homicide in relation to a child. Articles 8, 9 and 10 insert various specified statutory offences into paragraph 2 of schedule 1, in particular offences under the Sexual Offences (Scotland) Act 2009. Article 11 inserts provisions to deal with inchoate and art and part offences in respect of offences listed in paragraph 2 of schedule1 to the Act or listed in specified paragraphs of the Automatic Listing Order; it also makes provision for repealed offences which are similar to those in paragraph 2 of schedule 1 to the Act under which historic conduct might still be prosecuted.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.96.

Basis: the provision says a person “commits an offence”; c10_offence_under_parent_act
Confidence: 0.96 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source

This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
The Protection of Vulnerable Groups (Scotland) Act 2007 (Relevant Offences) (Modification) Order 2010 Every offence this instrument creates, and its explanatory note
Sexual offences and indecent or obscene materialOther offences on the same subject
Offences created in 2010