Offences against children under 18: abuse of position of trust
Article 22: Meeting a child following sexual grooming
7.51.Article 22 makes it an offence for a person (A) aged 18 or over to meet intentionally, or to travel with the intention of meeting, or otherwise arranges to meet, a child aged under 16 in any part of the world, if he has met or communicated with that child on at least two earlier occasions, and intends to commit a "relevant offence" against that child either at the time of the meeting or on a subsequent occasion. An offence is also committed if the child communicated with travels with the intention of meeting A in any part of the world. An offence is not committed if A reasonably believes the child to be 16 or over.
7.52.The offence is intended to cover situations where an adult (A) 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 he can arrange to meet the child for the purpose of committing a "relevant offence" against the child. The course of conduct prior to the meeting that triggers the offence may have an explicitly sexual content, such as A entering into conversations with the child about the sexual acts he wants to engage her in when they meet, or sending images of adult pornography. However, the prior meetings or communication need not have an explicitly sexual content and could for example simply be A giving the child swimming lessons or meeting her incidentally through a friend.
7.53.The offence will be complete either when, following the earlier communications, A meets the child or travels to meet the child, or arranges for the child to travel to meet him with the intent to commit a relevant offence against the child. The intended offence does not have to take place.
7.54.The evidence of A's intent to commit an offence may be drawn from the communications between A and the child before the meeting or may be drawn from other circumstances, for example if A travels to the meeting with ropes, condoms and lubricants.
7.55.Paragraph (2)(a) provides that A's previous meetings or communications with the child can have taken place in or across any part of the world. This would cover for example A emailing the child from abroad, A and the child speaking on the telephone abroad, or A meeting the child abroad. The travel to the meeting itself must at least partly take place in Northern Ireland.
Article 23: Abuse of position of trust: sexual activity with a child
Article 24: Abuse of position of trust: causing or inciting a child to engage in sexual activity
Article 25: Abuse of position of trust: sexual activity in the presence of a child
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.
Article 27: Abuse of position of trust: acts done in England and Wales or Scotland
7.59.Article 27 provides that any act that would, if done in Northern Ireland, constitute an offence under Articles 23 - 26 of this Order, also constitutes an offence if carried out in England, Wales or Scotland.
Article 28: Positions of trust
Article 29: Positions of trust: interpretation
7.60.Article 28 defines "position of trust" for the purposes of the offences in Articles 23, 24, 25 and 26. Paragraph (1)(b) of Article 28 also provides a power for the Secretary of State to specify further conditions that will constitute a position of trust. The power is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (Article 80(1)).
7.61.The conditions in paragraphs (2) to (5) use the term "looks after". This term is defined, in broad terms, at paragraph (2) of Article 29.
7.62.Paragraph (2) applies where the child is detained following conviction for a criminal offence, for example in a secure training centre or a young offenders’ institution.
7.63.Paragraph (3) applies to a wide range of settings in which young people are accommodated, including foster care; residential care (accommodation provided by a Health and Social Services Board); and semi-independent accommodation.
7.64.Paragraph (4) covers places where young people with medical conditions, physical or learning disabilities, mental illness or behavioural problems might be accommodated and includes NHS, private and voluntary accommodation.
7.65.Paragraph (5) covers the situation where the child is receiving education in an educational institution. This concept is further explained at paragraph (4) of Article 29. The effect of that paragraph is that where the child is registered at a college but receives education at another college with which the former has arrangements, A will still be in a position of trust in relation to the child if A works at the former college.
7.66.Paragraph (6) covers children's guardians appointed under Article 159 or 160 of the Children (Northern Ireland) Order 1995.
7.67.Paragraph (7) covers those who have unsupervised contact with children in the context of their duties under Article 21 or 23 of the Children (Northern Ireland) Order 1995. Such persons arrange accommodation for children who, for whatever reason, are not being looked after by those who have parental responsibility for them, and check that their welfare is being looked after once such accommodation has been found. They include Health and Social Services Board staff such as social workers and family assistance staff who visit the accommodation in which a child has been placed in order to oversee the child's welfare.
7.68.Paragraph (8) covers persons who have unsupervised contact with children by virtue of their appointment as child reporters under Article 4 of the Children (Northern Ireland) Order 1995. These persons present reports for the court relating to children's welfare.
7.69.Paragraph (9) covers personal advisers who look after children on an individual basis (as defined at Article 29(3)) having been appointed under the Children (Northern Ireland) Order 1995. Such personal advisers generally provide help and support to children aged 16-17 who have been in Health and Social Services Board care.
7.70.Paragraph (10) covers persons who supervise children pursuant to a care order, supervision order or educational supervision order under various provisions in the Children (Northern Ireland) Order 1995 and, in that capacity, look after children on an individual basis (again, as defined at Article 29(3)).
7.71.Paragraph (11) covers a range of persons who, in the course of their duties, regularly have unsupervised contact with children. These are persons appointed to act as children's guardians ad litem under Article 60(1) of the Children (Northern Ireland) Order 1995.
7.72.Paragraph (12) includes adults who supervise children under bail supervision, a community sentence (for example a probation order, combination order, community service order, supervision order, attendance centre order) and children under conditions following release from detention resulting from a criminal conviction (e.g. those released on licence from a young offenders institution). This would include those released on licence from a Juvenile Justice Centre or someone providing counselling or drug rehabilitation services to the child pursuant to the terms of a court order.
Article 30: Articles 23 to 26: exception for spouses and civil partners
7.73.Article 30 provides that A will not commit an offence under Articles 23 to 26 if he can prove that, at the time of the sexual activity, B was aged 16 or over and he and B were lawfully married or civil partners of each other.
