PART XIII Miscellaneous
F1Trials for sexual offences
288C Prohibition of personal conduct of defence in cases of certain sexual offences
F101
An accused charged with a sexual offence to which this section applies is prohibited from conducting his case in person at, or for the purposes of, any relevant hearing in the course of proceedings (other than proceedings in a JP court) in respect of the offence.
1A
In subsection (1), “relevant hearing” means a hearing at, or for the purposes of, which a witness is to give evidence.
2
This section applies to the following sexual offences—
a
rape F4(whether at common law or under section 1(1) of the Sexual Offences (Scotland) Act 2009 (asp 9));
b
sodomy;
c
clandestine injury to women;
d
abduction of a woman or girl with intent to rape;
F7da
abduction with intent to commit the statutory offence of rape;
e
assault with intent to rape;
F8ea
assault with intent to commit the statutory offence of rape;
f
indecent assault;
g
indecent behaviour (including any lewd, indecent or libidinous practice or behaviour);
h
an offence under section F3311 (non-consensual sexual acts) or 313 (persons providing care services: sexual offences) of the Mental Health (Care and Treatment)(Scotland) Act 2003;
i
an offence under any of the following provisions of the Criminal Law (Consolidation)(Scotland) Act 1995 (c.39)—
i
sections 1 to 3 (incest and related offences);
ii
section 5 (unlawful sexual intercourse with girl under 13 or 16);
iii
section 6 (indecent behaviour toward girl between 12 and 16);
iv
section 7(2) and (3)(procuring by threats etc. );
v
section 8 (abduction and unlawful detention);
vi
section 10 (seduction, prostitution, etc. of girl under 16);
vii
section 13(5)(b) or (c)(homosexual offences);
F5j
an offence under any of the following provisions of the Sexual Offences (Scotland) Act 2009 (asp 9)—
i
section 2 (sexual assault by penetration),
ii
section 3 (sexual assault),
iii
section 4 (sexual coercion),
iv
section 5 (coercing a person into being present during a sexual activity),
v
section 6 (coercing a person into looking at a sexual image),
vi
section 7(1) (communicating indecently),
vii
section 7(2) (causing a person to see or hear an indecent communication),
viii
section 8 (sexual exposure),
ix
section 9 (voyeurism),
x
section 18 (rape of a young child),
xi
section 19 (sexual assault on a young child by penetration),
xii
section 20 (sexual assault on a young child),
xiii
section 21 (causing a young child to participate in a sexual activity),
xiv
section 22 (causing a young child to be present during a sexual activity),
xv
section 23 (causing a young child to look at a sexual image),
xvi
section 24(1) (communicating indecently with a young child),
xvii
section 24(2) (causing a young child to see or hear an indecent communication),
xviii
section 25 (sexual exposure to a young child),
xix
section 26 (voyeurism towards a young child),
xx
section 28 (having intercourse with an older child),
xxi
section 29 (engaging in penetrative sexual activity with or towards an older child),
xxii
section 30 (engaging in sexual activity with or towards an older child),
xxiii
section 31 (causing an older child to participate in a sexual activity),
xxiv
section 32 (causing an older child to be present during a sexual activity),
xxv
section 33 (causing an older child to look at a sexual image),
xxvi
section 34(1) (communicating indecently with an older child),
xxvii
section 34(2) (causing an older child to see or hear an indecent communication),
xxviii
section 35 (sexual exposure to an older child),
xxix
section 36 (voyeurism towards an older child),
xxx
section 37(1) (engaging while an older child in sexual conduct with or towards another older child),
xxxi
section 37(4) (engaging while an older child in consensual sexual conduct with another older child),
xxxii
section 42 (sexual abuse of trust) but only if the condition set out in section 43(6) of that Act is fulfilled,
xxxiii
section 46 (sexual abuse of trust of a mentally disordered person);
F6k
attempting to commit any of the offences set out in paragraphs (a) to (j).
3
This section applies also to an offence in respect of which a court having jurisdiction to try that offence has made an order under subsection (4) below.
4
Where, in the case of any offence, other than one set out in subsection (2) above, that court is satisfied that there appears to be such a substantial sexual element in the alleged commission of the offence that it ought to be treated, for the purposes of this section, in the same way as an offence set out in that subsection, the court shall, either on the application of the prosecutor or ex proprio motu, make an order under this subsection.
5
The making of such an order does not affect the validity of anything which—
a
was done in relation to the alleged offence to which the order relates; and
b
was done before the order was made.
6
The Scottish Ministers may by order made by statutory instrument vary the sexual offences to which this section applies by virtue of subsection (2) above by modifying that subsection.
7
No such statutory instrument shall be made, however, unless a draft of it has been laid before and approved by resolution of the Scottish Parliament.
F28
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F99
In subsection (2)—
a
the references to “rape” in paragraphs (d) and (e) are to the offence of rape at common law; and
b
the references to “the statutory offence of rape” in paragraphs (da) and (ea) are (as the case may be) to?
i
the offence of rape under section 1 of the Sexual Offences (Scotland) Act 2009, or
ii
the offence of rape of a young child under section 18 of that Act.
S. 288C and cross-heading inserted (1.11.2002) by Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9), s. 1; S.S.I. 2002/443, art. 3 (with art. 4(1)(2))