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Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 [S]

This Scottish Executive Act introduces a range of measures to further strengthen the protection of children from sexual harm and abuse. The Bill creates a number of new offences including strengthening the law to deal with offenders who seek to 'groom' children for the purposes of committing sexual offences. It also creates risk of sexual harm orders to protect children from adults who display inappropriate behaviour towards them.



Policy Objective

The primary policy objective of the Bill is to better protect children from sex offenders by introducing new criminal offences and associate orders.

Key provisions in the Act (as passed)

Meeting a child following certain preliminary contact (section 1)

This offence strengthens the law by creating a specific offence to deal with those who groom children (a person under 16) for the purposes of carrying out unlawful sexual activity.

The offence will be committed by a person where all the following elements are present:

  • A person who travels to meet, or actually meets, with a child who is 16 or younger, or arranges for the child to travel to the meeting

  • The person intends to carry out unlawful sexual activity against the child - evidence for this might be from materials brought by the person such as condoms or the nature of previous communications on the part of the adult

  • The person has communicated with the child on at least one previous occasion beforehand

  • The person does not reasonably believe that the child is 16 or older

This offence carries a maximum penalty of 10 years' imprisonment.

""Grooming"" is the use of contact with a child to facilitate the commission of a sexual offence against that child.

The offence is intended to cover situations where an adult establishes contact with a child through, for example, meetings, telephone conversations or communications on the internet, and gains the child's trust and confidence so that the adult can arrange to meet the child for the purpose of committing a ""relevant offence"" against a child.

Grooming can already be prosecuted under existing Scots law. This proposal would make sexual grooming a specific offence.


Risk of Sexual Harm Orders (RSHOs) (Sections 2-7)

These civil orders are designed to protect children (under 16) from those who display inappropriate behaviour towards them. A chief constable can apply to the sheriff court for an order to restrict the activities of individuals believed to pose a risk of sexual harm to children. The orders will be imposed on individuals who have not been convicted of an offence, due to lack of proof or corroboration.

The four categories of behaviour that can trigger a Risk of Sexual Harm Order (RSHO) are:
  • engaging in a sexual activity involving or in the presence of a child

  • causing a child to watch a person engaging in sexual activity - including still or moving images

  • giving a child anything that relates to sexual activity

  • communicating with a child where any part of the communication is sexual

The orders will apply for a minimum of two years and will set out specific activities that the person in question must not do, for example prohibiting them from visiting public swimming pools.
Breach of an order is a criminal offence.
RSHOs are already operational in the rest of the UK under the Sexual Offences Act 2003 (s. 123-129).

Abuse of children through prostitution and pornography (sections 8A-8F)

Section 8A introduces a new offence of purchasing sexual services from a person under 18. The definition of sexual services in the bill refers to any activity that a reasonable person believes to be sexual or for the purposes of sexual gratification, for example prostitution or sex-chat lines.

Sections 8B to 8D create new criminal offences of causing, inciting, controlling, arranging or facilitating prostitution and pornography of a young people under 18.


Indecent images of children (section 8H)

Section 8H amends current legislation criminalising the taking, possessing and distribution of indecent images of children and young people so that it applies to images of people under 18 rather than under 16.

The provisions however allow a defence to the charge if:
  • the picture is of a 16 or 17 year old

  • the 16 or 17 year old consents to the picture being made and/or possessed

  • the picture is not distributed

  • the accused person and the 16 or 17 year old are married, civil partners or in an established relationship

The Bill relies on the existing definition of an indecent picture, as established by the courts, of a picture that tends to corrupt or deprave the viewer.

Sexual Offences Prevention Orders (section 9)
Sexual Offence Prevention Orders (SOPOs) specify activities that an individual must not do. They are placed on an individual who has been convicted of crimes with a sexual/violent element if the offenders behaviour after conviction continues to present public risk. The orders are made at the request of a Chief Constable. They were introduced through the Sexual Offences Act 2003.

The Act has extended their use so that a sentencing judge can impose a SOPO without the need - as at present - for further evidence of threatening behaviour post conviction.

The orders apply for a minimum of five years and require offenders to register under the Sexual Offences Act 2003.

Breach of a SOPO is a criminal offence.

For more information on the provisions in the Bill visit the Bill's web page for a copy of the Bill, explanatory notes and policy memorandum.

The Bill's passage through Parliament

Key amendments at Stage 2


Age limits

The Bill as introduced specified that the offence of meeting a child following preliminary contact (section 1) could only be committed by an adult aged 18 or over. Similarly a RSHO could only be imposed on those aged 18 or over.

The Bill was amended at Stage 2 deleting these minimum age limits.

Construction of section 1 offence

One of the elements of this offence is that one prior communication has taken place between the child and the perpetrator. The Bill as introduced specified two prior communications were necessary to meet criteria for offence.

Sexual exploitation of children

Sections 8A to 8H were added to the Bill at Stage 2. These relate to new offences involving the sexual exploitation of children and young people (sections 8A to 8D) and amendments to current legislation in relation to indecent images of children and young people.

These amendments were put forward by the Scottish Executive in line with an European Union Directive.

Key amendments at Stage 3

Definitions

The Scottish Executive brought forward amendments to standardise the definition of 'sexual activity' and 'sexual services' throughout the Bill.

RSHOs

Probing amendments were laid in terms of RSHOs to ensure that the Parliament fully understood the implications of the measures.

Disclosure

An amendment was lodged by Stewart Stevenson MSP on behalf of YouthLink to clarify the interface between the Protection of Children (Scotland) Act 2003 and the Bill. The amendment was withdrawn following assurances from the Minister that procedures would be in place to inform employers of individuals subject to RSHOs who are employed in 'childcare' positions.

Indecent images of 16 and 17 year olds - exceptions

Marlyn Glen lodged amendments seeking to omit the exception of marriage or a relationship from section 8H of the Bill. She argued that the Parliament had not had enough time to consider the implications of these measures in detail as they were only brought forward at stage 2. The amendment was withdrawn after the Minister gave assurances that the exceptions would be rigorously monitored over the next two years, along with the rest of the Bill.



Timeline

07/04 - 11/04 - The Scottish Executive consulted on the draft Bill with the Protecting children from sexual harm consultation.

29/10/04 - Bill introduced to Scottish Parliament

29/10/04 - Scottish Parliament Justice 1 Committee calls for written evidence on general principles of the Bill at Stage 1.

Stage 1

Lead Committee:
Justice 1 Committee

Justice 1 Committee takes evidence on Bill at their meetings on 8, 22 December 2004; 12, 26 January 2005; 2, 9, 23 February 2005 and 2 March 2005

Subordinate Legislation Committee on 1, 8 February 2005

10/03/05 - Committee publishes Stage 1 Report recommending general principles be agreed to but highlighting serious reservations (see related link for summary of report)

17/03/05 - Bill passed at Stage 1- Scottish Parliament agree to general principles of Bill. Bill passed at Stage 1.

Stage 2

Justice 1 Committee 12, 20, 27 April 2005

05/05/05 - Bill reprinted as amended at Stage 2 - for more information see related internal link

Stage 3

02/06/05 - Bill amended and passed12/07/05 - Bill received Royal Assent

Further Information

  1. Protection of Children and Prevention of Sexual Offences (Scotland) Act
  2. Protection of Children and Prevention of Sexual Offences
  3. Protection of Children and Prevention of Sexual Offences