Part 5
Sections 63 to 67 make it an offence to possess pornographic images that depict acts which threaten a person’s life, acts which result in or are likely to result in serious injury to a person’s anus, breasts or genitals, bestiality or necrophilia; they also provide for the exclusion of classified films etc. and set out defences and the penalties for the offence. Section 68 and Schedule 14 are intended to ensure that the operation of the extreme pornography offence is consistent with the UK’s commitments under the E-Commerce Directive (Directive 2000/31/EC) with regard to services provided by the Internet industry.
Sections 69 and 70 extend the definition of an indecent photograph in the Protection of Children Act 1978 (and the equivalent Northern Ireland legislation) to include a tracing or other image derived from a photograph.
Section 71 increases the maximum penalty for publication of obscene material and for the possession of such material for gain under the Obscene Publications Act 1959.
Section 72 substitutes a new section 72 into the Sexual Offences Act 2003 which allows for the prosecution of sexual offences against children committed abroad. In respect of the prosecution of UK nationals, it removes the requirement that the act committed must have been illegal in the country where it took place. This requirement remains for the prosecution of UK residents. For both nationals and residents this section provides that extra-territorial jurisdiction will apply for the offences specified where they are committed against children under 18, whereas currently it applies only to offences against children under 16. This section will support signature and ratification of the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Abuse.
Section 73 introduces Schedule 15 which amends the offence of meeting a child following sexual grooming. Currently it is an offence if, following two earlier communications, an adult over 18 travels to meet a child under 16, with the intention of committing a sexual offence against that child. As a result of the amendment made by this Schedule an offence will be committed by an adult who has arranged a meeting with a child following two earlier communications, when the child travels to meet the offender. It also makes it an offence for an adult over 18 to arrange a meeting with a child under 16, following two earlier communications, if he intends to commit a sexual offence against that child during or after the meeting. Schedule 15 also amends the Sexual Offences Act 2003 and the Adoption Act 1976 as regards sexual offences and adoption.
Part 11
Section 140 concerns the disclosure of information about convictions etc of child sex offenders to members of the public. Subsection (1) inserts new sections 327A and 327B into the Sexual Offences Act 2003.
A new subsection 327A(1) places a duty on MAPPA authorities (which includes the police, prison and probation services) to consider, in every case, disclosure to members of the public of information in its possession relating to the convictions of any child sex offender being managed by it.
New subsections 327A(2) and (3) create a presumption that information will be disclosed where the responsible MAPPA authority has reasonable cause to believe that a child sex offender poses a risk of serious harm to any particular child or children or to children of any particular description, and the disclosure of information to a particular member of the public is necessary for the purpose of protecting the particular child or children, or the children of that description, from serious harm caused by that offender.
A new subsection 327A(4) makes clear that the presumption to disclose is not dependent on a request from the public.
A new subsection 327A(5) allows responsible authorities the discretion, when making a disclosure under this section to disclose such information about the offender’s convictions as it considers appropriate. It also allows the responsible authority to impose conditions preventing the recipient of the information from disclosing it to others.
A new subsection 327A(6) obliges responsible authorities to ensure that, having made a decision that information should be disclosed, it should disclose this information as soon as is reasonably practicable.
A new subsection 327A(7) and (8) require that any decision to disclose information or not, and the reasons for such a decision, must be recorded by the responsible MAPPA authority. Any conditions attached to the disclosure should also be recorded.
A new subsection 327A(9) makes it clear that a disclosure should not be made under this section which contravenes the Data Protection Act 1998.
A new subsection 327A(10) confirms that the authorities’ powers to disclose are not affected by this section. They will still need to ensure that they have the necessary vires under their common law or prerogative powers to disclose.
The new section 327B provides a definition of the terms used in new section 327A, notably that a child is a person under 18, a child sex offender includes a person convicted or cautioned of an offence listed in the new Schedule 34A, or an equivalent offence abroad, whether spent or not, and that “serious harm” includes serious physical or psychological harm caused by committing any offence listed in the new Schedule 34A
Section 141 – Sexual offences prevention orders: relevant sexual offences
The section amends the criteria necessary for a sexual offences prevention order to be made.
Subsection (1) amends section 106 of the Sexual Offences Act 2003 with the effect that it will not be necessary to meet the conditions listed as to the age of the victim, age of the offender and/or sentence length in Schedule 3 to that Act for a sexual offences prevention order to be made. The thresholds relating to sentence length/type and the age of the offender or victim set out in Schedule 3, will continue to apply for the purposes of determining whether an offender is subject to the notification requirements (“the sex offender’s register”).
Section 142 – Notification requirements: prescribed information
This section amends the Sexual Offences Act 2003 in order to allow the Secretary of State to amend, through secondary legislation (subject to the affirmative resolution procedure), the notification requirements placed on those convicted or cautioned of relevant sexual offences or otherwise subject to the sex offender notification requirements.
Subsection (1) allows the Secretary of State to add to the information that sex offenders subject to the notification requirements must notify to the police.
Subsections (2) to (5) have the effect that, if the Secretary of State does add to the information required to be notified by a sex offender and there is a change in those details, the offender must notify the authorities within three days of the change. As occurs with the current information which must be notified, subsection (4) allows the sex offender to notify the police of an expected change in the prescribed details before the change occurs. Subsections (6) to (9) allow the Secretary of State to provide in regulations that an offender who does not have a sole or main residence in the United Kingdom must notify their details to police more frequently.
