Sex Offenders (Amendment) Act 2023
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Insertion of Part 4A in Principal Act | ||
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20. The Principal Act is amended by the insertion of the following Part after Part 4: | ||
“Part 4A | ||
Prohibition on Working with Children and Vulnerable Persons | ||
Interpretation (Part 4A) | ||
26A. (1) In this Part— | ||
‘applicable offender’ means a person who, after the coming into operation of section 20 of the Sex Offenders (Amendment) Act 2023, is convicted of a sexual offence for which, in the opinion of the court before which the person appears, the appropriate sentence is, apart from the provisions of this Part, one of imprisonment for any term (whether in addition to the imposition of a fine or not); | ||
‘child’ has the same meaning as it has in Part 4; | ||
‘prohibition’ shall be construed in accordance with section 26C(1); | ||
‘prohibition commencement date’, in relation to an applicable offender, means— | ||
(a) where the sentence of imprisonment referred to in section 26D(1)(a) is suspended in its entirety, the date on which the sentence is imposed on the offender, | ||
(b) where that sentence of imprisonment is suspended in part, the date on which the offender is released from prison, or | ||
(c) in any other case, the date on which— | ||
(i) the sentence expires, | ||
(ii) the offender’s remission from the sentence begins, or | ||
(iii) the offender is released on parole in accordance with the Parole Act 2019 ; | ||
‘prohibition period’ shall be construed in accordance with section 26D(1)(b); | ||
‘relevant work’ has the same meaning as it has in section 26; | ||
‘sentence including a prohibition’ shall be construed in accordance with section 26D(1). | ||
(2) In this Part— | ||
(a) references to protecting a child or a vulnerable person from serious harm from an applicable offender shall be construed as references to protecting a child or a vulnerable person from death or serious personal injury, whether physical or psychological, which would be occasioned if the offender were to commit a sexual offence after he or she has been released into the community, and | ||
(b) a reference to a person applying to another person includes a reference to the person applying to another person without that other’s having requested or solicited the making of the application. | ||
Part 4A without prejudice to Part 5 | ||
26B. This Part is without prejudice to Part 5 and a prohibition may be imposed on an applicable offender under section 26D— | ||
(a) regardless of whether a sentence involving post supervision release (within the meaning of Part 5) is being imposed on the offender, and | ||
(b) where such a sentence is being imposed on the offender, in addition to that sentence. | ||
Duty of court to consider imposition of sentence involving prohibition | ||
26C. (1) In determining the sentence to be imposed on an applicable offender in respect of the sexual offence concerned, the court shall consider whether to impose a sentence including a prohibition on the offender engaging in relevant work (‘a prohibition’). | ||
(2) In considering that matter, the court shall have regard to— | ||
(a) the need to protect children or vulnerable persons from serious harm from the offender, and | ||
(b) the need to prevent the commission by the applicable offender of subsequent sexual offences. | ||
(3) For the purposes of this Part, the court may, if it thinks it necessary to do so, receive evidence or submissions from any person concerned. | ||
Power of court to impose prohibition | ||
26D. (1) Subject to subsections (2) and (3), a court may, where it is satisfied that it is necessary to do so to protect children or vulnerable persons from serious harm from the applicable offender, having regard to the matters specified in section 26C(2), impose on an applicable offender in respect of the sexual offence concerned a sentence including a prohibition, that is to say a sentence which consists of— | ||
(a) the imposition of a sentence of imprisonment (whether in addition to the imposition of a fine or not), and | ||
(b) a provision that during a specified period (‘the prohibition period’) commencing on the prohibition commencement date, the offender shall be subject to the prohibition. | ||
(2) The aggregate of the sentence of imprisonment referred to in subsection (1)(a) and the prohibition period shall not exceed the duration of the maximum term of imprisonment that may be imposed in respect of the sexual offence concerned. | ||
(3) The term of the sentence of imprisonment referred to in subsection (1)(a) shall not be less than the term the court would have imposed if it had considered the matter apart from the provisions of this Part. | ||
(4) The court may, when imposing a sentence including a prohibition, specify a particular type or category of relevant work to which the prohibition applies. | ||
Duty of court to explain effect of sentence to offender | ||
26E. In imposing a sentence including a prohibition on an applicable offender, the court shall explain to him or her— | ||
(a) the effect of the sentence, | ||
(b) the consequences provided for under section 26G if he or she fails to comply with the prohibition, and | ||
(c) that under this Act, the court may vary or discharge the prohibition on the application of either the offender or a probation officer. | ||
Discharge or variation of prohibition | ||
26F. The court may, not more than one month before the proposed prohibition commencement date or at any time during the prohibition period, on the application of— | ||
(a) the offender on whom the sentence including a prohibition was imposed, or | ||
(b) a probation officer, | ||
discharge or vary the prohibition, if, having regard to the circumstances which have arisen since the sentence was imposed— | ||
(i) it would be in the interests of justice to do so, and | ||
(ii) the protection of children or vulnerable persons from serious harm from the offender no longer requires that the prohibition should continue in force or, as appropriate, that it should continue in force in the form in which it stands at the date of the making of the application. | ||
Non-compliance with prohibition | ||
26G. (1) A person on whom a sentence including a prohibition is imposed who, during the prohibition period— | ||
(a) applies to another person to be employed by that person to do prohibited work, | ||
(b) enters into a contract of employment to do prohibited work, | ||
(c) applies to another person to do prohibited work on the other person’s behalf (whether in return for payment or for any other consideration or not), | ||
(d) enters into a contract for services to do prohibited work, or | ||
(e) does prohibited work, | ||
shall be guilty of an offence. | ||
(2) A person guilty of an offence under subsection (1) shall be liable— | ||
(a) on summary conviction, to a class C fine or imprisonment for a term not exceeding 12 months or both, or | ||
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years or more. | ||
(3) The conviction of a person for an offence under this section shall not prevent the prohibition period continuing to have effect. | ||
(4) In proceedings for an offence under subsection (1), it shall be a defence for the accused to prove that he or she neither knew nor could reasonably be expected to have known that the work— | ||
(a) to which the application or contract referred to in paragraph (a), (b), (c) or (d) of that subsection related was prohibited work, or | ||
(b) that the work referred to in paragraph (e) of that subsection was prohibited work. | ||
(5) If a sentence of imprisonment is imposed on an applicable offender for an offence under this section, that sentence shall, for the period the offender spends in prison on foot of that sentence, operate to suspend the prohibition and the period for which that prohibition is so suspended shall not be reckoned in calculating the date on which the prohibition period expires. | ||
(6) In this section, ‘prohibited work’, in relation to a person, means relevant work that is the subject of a sentence including a prohibition imposed on the person.”. |