Sexual Offences Act 2003

[F1112Sections 104 and 106 to 109: ScotlandS+N.I.

This section has no associated Explanatory Notes

(1)Sections 104 and 106 to 109 apply to Scotland with the following modifications—

F2[F3(aa)the references in subsection (2) and (3)(a) of section 104 to an offence listed in Schedule 3 or 5 shall be read as references to an offence listed at paragraphs 36 to 60 of Schedule 3;]

(b)an application under subsection (5) of section 104 shall not be competent in respect of a person who is a qualifying offender by virtue only of a conviction or finding which relates to any offence listed at paragraphs 64 to 111 of Schedule 5;

(c)references to a chief officer of police and to his police area are to be read, respectively, as references to [F4the chief constable of the Police Service of Scotland and to Scotland];

(d)references to the defendant are to be read as references to the person in respect of whom the order is sought or has effect;

[F5(da)a court may make an order under section 104(1)—

(i)at its own instance, or

(ii)on the motion of the prosecutor;]

(e)an application for a sexual offences prevention order F6. . . is made by summary application to any sheriff

[F7(ia)within whose sheriffdom the person in respect of whom the order is sought resides;

(ib)within whose sheriffdom that person is believed by the applicant to be;

(ic)to whose sheriffdom that person is believed by the applicant to be intending to come;]

(ii)[F8within whose sheriffdom lies] any place where it is alleged that [F9that person] acted in a way mentioned in subsection (5)(b) of section 104,

([F10and, in relation to such an order, references to a court or the court shall be] construed accordingly);

[F11(ea)an application for an interim sexual offences prevention order—

(i)is made by way of the main application; or

(ii)if the main application has been made, is made, by application to a sheriff for the sheriffdom of the sheriff to whom the main application was made, by the person who made that application,

(and, in relation to such an order, references to a court or the court shall be construed accordingly),]

(f)an application for the variation, renewal or discharge of [F12a sexual offences prevention order which was made on an application under section 104(5) or 105(1) or an interim sexual offences prevention order] is made by summary application to the sheriff who made the order or to a sheriff—

(i)within whose sheriffdom the person subject to the order resides; F13. . .

[F14(iia)within whose sheriffdom that person is believed by the applicant to be; or

(iib)to whose sheriffdom that person is believed by the applicant to be intending to come,]

([F15and, in relation to an application made by virtue of this paragraph, references to a court or the court shall be] construed accordingly).

[F16(g)an application for the variation, renewal or discharge of a sexual offences prevention order which was made where subsection (2) or (3) of section 104 applies may be made only by the person in respect of whom the order has effect or the prosecutor;

(h)such an application is made—

(i)where the sexual offences prevention order sought to be varied, renewed or discharged was made by the High Court of Justiciary, to that court;

(ii)where that order was made by the sheriff, to the appropriate sheriff.]

[F17(1A)In subsection (1)(h)(ii), the “appropriate sheriff” is—

(a)in a case where the person in respect of whom the order has effect is, at the time of the application for its variation, renewal or discharge, resident in a sheriffdom other than the sheriffdom of the sheriff who made the order, any sheriff exercising criminal jurisdiction in the sheriffdom in which the person is resident;

(b)in any other case, any sheriff exercising criminal jurisdiction in the sheriff court district of the sheriff who made the order.]

(2)A record of evidence shall be kept on any summary application made by virtue of subsection (1)(e) or (f) above.

(3)The clerk of the court by which, by virtue of that subsection, a sexual offences prevention order or interim sexual offences prevention order is made, varied, renewed or discharged shall cause a copy of, as the case may be—

(a)the order as so made, varied or renewed; or

(b)the interlocutor by which discharge is effected,

to be given to the person named in the order or sent to him by registered post or by the recorded delivery service (an acknowledgement or certificate of delivery of a copy so sent, issued by the Post Office, being sufficient evidence of the delivery of the copy on the day specified in the acknowledgement or certificate).]

Textual Amendments

F3S. 112(1)(aa) inserted (7.10.2005) in place of s. 112(1)(a) by Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9), ss. 17(4)(b), 20; S.S.I. 2005/480, art. 2 (subject to art. 3) (which amending s. 17 was extended (8.11.2006) by Violent Crime Reduction Act 2006 (c. 38), s. 56(1)(a))

F6Words in s. 112(1)(e) omitted (7.10.2005) by virtue of Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9), ss. 17(4)(c)(i), 20; S.S.I. 2005/480, art. 2 (subject to art. 3) (which amending s. 17 was extended (8.11.2006) by Violent Crime Reduction Act 2006 (c. 38), s. 56(1)(a))

F7Words in s. 112(1)(e) substituted (7.10.2005) by Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9), ss. 17(4)(c)(ii), 20; S.S.I. 2005/480, art. 2 (subject to art. 3) (which amending s. 17 was extended (8.11.2006) by Violent Crime Reduction Act 2006 (c. 38), s. 56(1)(a))

F8Words in s. 112(1)(e)(ii) inserted (7.10.2005) by Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9), ss. 17(4)(c)(iii), 20; S.S.I. 2005/480, art. 2 (subject to art. 3) (which amending s. 17 was extended (8.11.2006) by Violent Crime Reduction Act 2006 (c. 38), s. 56(1)(a))

F9Words in s. 112(1)(e)(ii) substituted (7.10.2005) by Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9), ss. 17(4)(c)(iv), 20; S.S.I. 2005/480, art. 2 (subject to art. 3) (which amending s. 17 was extended (8.11.2006) by Violent Crime Reduction Act 2006 (c. 38), s. 56(1)(a))

F10Words in s. 112(1)(e) substituted (7.10.2005) by Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9), ss. 17(4)(c)(v), 20; S.S.I. 2005/480, art. 2 (subject to art. 3) (which amending s. 17 was extended (8.11.2006) by Violent Crime Reduction Act 2006 (c. 38), s. 56(1)(a))

F12Words in s. 112(1)(f) substituted (7.10.2005) by Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9), ss. 17(4)(e)(i), 20; S.S.I. 2005/480, art. 2 (subject to art. 3) (which amending s. 17 was extended (8.11.2006) by Violent Crime Reduction Act 2006 (c. 38), s. 56(1)(a))

F14S. 112(1)(f)(iia)(iib) substituted (7.10.2005) for s. 112(1)(f)(ii) by Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9), ss. 17(4)(e)(iii), 20; S.S.I. 2005/480, art. 2 (subject to art. 3) (which amending s. 17 was extended (8.11.2006) by Violent Crime Reduction Act 2006 (c. 38), s. 56(1)(a))

F15Words in s. 112(1)(f) substituted (7.10.2005) by Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9), s. 17(4)(e)(iv) (as amended (8.11.2006) by 2006 c. 38, s. 56(1)(a)); S.S.I. 2005/480, art. 2 (subject to art. 3)