UK Offence Report

Amendment of the 2003 Act

article 3 of The Sexual Offences Act 2003 (Remedial) (Scotland) Order 2010

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

7 In this section— “sexual harm” means physical or psychological harm caused by the relevant sex offender doing anything which would constitute an offence listed in Schedule3 if done in any part of the United Kingdom; and “responsible authorities” has the meaning given by section 10(7) of the Management of Offenders etc.

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 This is the text as originally made; later amendments are not shown here.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 3?

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.

  1. Doing what the provision prohibits, or failing to do what it requires under the Sexual Offences Act 2003 (Remedial) (Scotland) 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 91 of this 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.

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
Revoked
Revoked by
The Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011
Revoked on
28 January 2011
Made
25 October 2010
In force from
Not determined
Extent
S

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

This Order makes amendments to the Sexual Offences Act 2003 (“the 2003 Act”) to remove the incompatibility of the indefinite notification period in section 82(1) of that Act with a Convention right. This Order extends to Scotland only. In the case of R (on the application of F (by his litigation friend F)) and Thompson (FC)vSecretary of State for the Home Department [2010] UKSC 17 (21stApril 2010) the Supreme Court of the United Kingdom made a declaration under section4 of the Human Rights Act 1998 that— “the indefinite notification requirements in section82(1) of the Sexual Offences Act 2003 are incompatible with article8 of the European Convention on Human Rights because they do not contain any mechanism for the review of the justification for continuing the requirements in individual cases.” In order to remove the incompatibility, article 3 of this Order inserts sections 88A to 88I into Part 2 of the 2003 Act. Those sections provide a mechanism for the periodic review of the justification for continuing the notification requirements in individual cases. Section 88A of the 2003 Act makes it clear that provision made for a review of the indefinite notification requirements in sections 88B to 88H will apply to any person who is notifying indefinitely on the date on which this Order comes into force (25th October 2010 at 17:00 hours) or to any person who is made subject to the notification requirements for an indefinite period on or after that date (a “relevant sex offender”). Section 88B of the 2003 Act sets out what the date of discharge and further date of discharge are for the purpose of sections 88A to 88H. For a relevant sex offender who was aged 18 or over at the time of conviction or other finding, the date of discharge will be 15 years from the date of conviction or other finding, after disregarding any time referred to in subsection (2). For a relevant sex offender who was aged under 18 on the date of conviction or other finding (“young sex offenders”) the date of discharge will be 8 years from the date of conviction or other finding, after disregarding any time specified in subsection (2). This means that in the majority of cases the 15 or 8 year review period will commence after the relevant offender has been released from prison, detention in hospital, etc. Section 88C of the 2003 Act sets out how the first review carried out by the relevant chief constable will operate. The relevant chief constable will have to decide, before the expiry of the applicable 15 or 8 year review period, whether a relevant sex offender should remain subject to the notification requirements. If the decision is that the relevant sex offender should cease to be subject to the notification requirements, the relevant sex offender will cease to be subject to those requirements on the date of discharge. If the relevant chief constable is satisfied that the relevant sex offender poses a risk of sexual harm, a notification continuation order will be made for a fixed period. Subsection (7) provides a definition of sexual harm. A notification continuation order will set out how long a relevant sex offender has to notify for before getting a further right of review. This can be imposed for a fixed period of up to 15 years. Section 88D of the 2003 Act applies to young sex offenders who have already been subject to the notification requirements for a total period of at least 8 years at the date on which the remedial order comes into force. The notification requirements were originally contained in Part 1 of the Sex Offenders Act 1997 (“the 1997 Act”) before being repealed and re-enacted with amendments in Part 2 of the 2003 Act. Part 1 of the 1997 Act was commenced on 1st September 1997. Therefore, it is possible that a young sex offender may have been notifying for a total of 8 years just before or on the date on which this Order comes into force. As with section 88C, the relevant chief constable will be required to make a decision as to whether a young sex offender should cease to be subject to the notification requirements and intimate that decision to the relevant sex offender within 3 months from the date on which this Order comes into force. Section 88E of the 2003 Act applies in circumstances in which a notification continuation order has been made in relation to a relevant sex offender. In such circumstances, the relevant chief constable will be required to carry out a further review as to whether the relevant sex offender should remain subject to the notification requirements, and notify that offender of the decision before the end of the fixed period specified in the notification continuation order. Section 88F of the 2003 Act provides that if the relevant chief constable has not completed a review under section 88C, 88D or 88E by the required date, the relevant sex offender can make an application to a sheriff to no longer be subject to the notification requirements. A sheriff will consider the application and decide whether the relevant sex offender should cease to be subject to the notification requirements. The test for reaching a decision will be exactly the same as the test which a chief constable has to apply, which is whether the relevant sex offender poses a risk of sexual harm. A sheriff can impose a notification continuation order for a fixed period of not more than 15 years. Section 88G of the 2003 Act provides that the decision of the relevant chief constable to make a notification continuation order, and the duration of that order, can be appealed to a sheriff. It sets out how the review mechanism will operate. The decision of a sheriff to grant or refuse an appeal can be appealed to the sheriff principal whose decision is final. An appeal of any decision must be brought within 21 days. An appeal can be brought against the decision to make a notification continuation order, as well as or separately, against the fixed period which that order imposes. Subsections (9) and (10) make it clear that a relevant sex offender will remain subject to the existing notification requirements of this Part until the decision as to whether he or she should cease to be subject to this regime is finally determined. This includes the determination of any appeals against the decision of the relevant chief constable or, as the case may be, the sheriff. Section 88H provides that the Scottish Minsters may by order, subject to affirmative procedure, amend the 15 or 8 year periods in section 88B(1) or the maximum period which a notification continuation order can be made specified in section 88C(2). Article 4 of this Order makes consequential amendments to sections 133 and 138 of the 2003 Act. This Order will come into force at 17:00 hours on 25th October 2010 pursuant to the procedure prescribed in section14 of the Convention Rights (Compliance) (Scotland) Act 2001. This Order will cease to have effect if, at the end of the period of 120days beginning with the day on which this Order was made, a resolution has not been passed by the Scottish Parliament approving this Order.

Read the full note and every offence in this 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 0.75.

Basis
the provision says the conduct “constitutes an offence”
Confidence
0.75 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