UK Offence Report

Relevant sexual offence

article 2 of The Retention of Samples etc. (Children’s Hearings) (Scotland) Order 2011

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

2 For the purposes of section 18E of the 1995 Act, the following relevant sexual offences are relevant offences:—

a rape at common law;

b clandestine injury to women;

c abduction of

a woman with intent to rape;

d assault with intent to rape or ravish;

e indecent assault;

f lewd, indecent or libidinous behaviour or practices;

g public indecency, if it is apparent from the ground of referral relating to the offence that there was

a sexual aspect to the behaviour of the child;

h sodomy;

i any offence which consists of

a contravention of any of the following statutory provisions:—

i section

52 of the 1982 Act (taking and distribution of indecent images of children);

ii section 52A of the 1982 Act (possession of indecent images of children);

iii section

1 of the CLCS Act (incest);

iv section

2 of the CLCS Act (intercourse with step child);

v section

8 of the CLCS Act (abduction and unlawful detention of women and girls);

vi section

1 of the 2009 Act (rape);

vii section

2 of the 2009 Act (sexual assault by penetration);

viii section

3 of the 2009 Act (sexual assault);

ix section

4 of the 2009 Act (sexual coercion);

x section

5 of the 2009 Act (coercing

a person into being present during

a sexual activity);

xi section

6 of the 2009 Act (coercing

a person into looking at

a sexual image);

xii section 7(1) of the 2009 Act (communicating indecently);

xiii section 7(2) of the 2009 Act (causing

a person to see or hear an indecent communication);

xiv section

8 of the 2009 Act (sexual exposure);

xv section

9 of the 2009 Act (voyeurism);

xvi section

18 of the 2009 Act (rape of

a young child);

xvii section

19 of the 2009 Act (sexual assault on

a young child by penetration); xviii section

20 of the 2009 Act (sexual assault on

a young child);

xix section

21 of the 2009 Act (causing

a young child to participate in

a sexual activity);

xx section

22 of the 2009 Act (causing

a young child to be present during

a sexual activity);

xxi section

23 of the 2009 Act (causing

a young child to look at

a sexual image);

xxii section 24(1) of the 2009 Act (communicating indecently with

a young child); xxiii section 24(2) of the 2009 Act (causing

a young child to see or hear an indecent communication);

xxiv section

25 of the 2009 Act (sexual exposure to

a young child);

xxv section

26 of the 2009 Act (voyeurism towards

a young child); and

j any attempt, conspiracy or incitement to commit an offence listed in sub-paragraphs (a) to (i).

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
contravening a requirement of the instrument
Fault element
Requires proof of a state of mind
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove both that the conduct happened and that it was done with the state of mind the provision names (with intent to).

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

Classifier’s reasoning: mens rea word in the offence-creating words: with intent to.

What would breach article 2?

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 the thing the provision prohibits under the Retention of Samples etc. (Children’s Hearings) (Scotland) Order 2011, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

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
Status not determined
Made
8 March 2011
In force from
15 April 2011
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 note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

Section 18E of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) provides that any relevant physical data and samples which are taken from a child under section 18(2), (6) or (6A) of the 1995 Act do not have to be destroyed for at least 3 years if that child has been referred to a children’s hearing on grounds of having committed a relevant offence and the child (and relevant adult) accept that ground of referral or the matter is referred to a sheriff who deems or finds that the ground of referral has been established. This Order prescribes the list of relevant sexual offences and relevant violent offences that are relevant offences for the purpose of section 18E of the 1995 Act. Article 2 prescribes the list of relevant sexual offences that are relevant offences. Article 3 prescribes the list of relevant violent offences that are relevant offences. In relation to the offence of assault, paragraph (1)(e) provides that it is only a serious assault that will be a relevant offence. A serious assault is defined in paragraph (2) by reference to the severity of the injury that will be recorded on the ground of referral made to the children’s hearing which is either accepted by the child (and relevant adult) or deemed or found to be established by a sheriff.

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 0.92.

Basis
the provision says a person “commits an offence”
Confidence
0.92 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