Explanatory Memorandum to Sexual Offences (Northern Ireland) Order 2008

Sexual Offences (Northern Ireland) Order 2008

2008 No. 1769

7.Policy Background

The Provisions

Part 3 – Sexual offences against children

Offences against children under 18: abuse of position of trust

Article 26: Abuse of position of trust: causing a child to watch a sexual act

7.56. These Articles provide that it is an offence for a person (A) aged 18 or over intentionally to behave in certain sexual ways in relation to a child aged under 18, where A is in a position of trust (as defined in Article 28) in respect of the child. The prohibited behaviour in each of the Articles is identical to that prohibited by the child sex offences in sections 16, 17, 18 and 19 respectively, except that for the abuse of position of trust offences, the child may be 16 or 17.

7.57. Except where the child is under 13, one of the requirements of the offence is that A does not reasonably believe that the child is 18 or over, and A is subject to an evidential burden in relation to this aspect of the offence (paragraph (3) of each Article). An evidential burden means that, unless A shows from the evidence that there is an arguable case as to whether he reasonably believed the child to be 18 or over, it is presumed that he did not reasonably believe this. Where the child is under 13, the offence is committed regardless of any belief A might have in relation to the child's age.

7.58. The effect of paragraph (1)(d) (or in the case of Article 25, paragraph (1)(e)) is that, where A is in a position of trust by virtue of one of the first four categories of position of trust set out at Article 28 , the prosecution must prove, in addition to the other requirements, that he knew or could reasonably have been expected to know of the facts placing him in a position of trust with the child. Paragraph (4) of each Article puts an evidential burden on A in this respect. This means that, unless A shows from the evidence that there is an arguable case as to whether or not he knew or could reasonably have been expected to know of the facts giving rise to the position of trust, it is presumed that he did know or could reasonably have been expected to know them. The first four categories of position of trust all concern situations where A looks after persons under 18 at an institution and the child is at that institution. Paragraph (4) of each Article is designed to cover cases where, for example, the institution where A works is very large or has a number of different sites, and A may not therefore know that the child is at the institution.