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Crime and Security Act 2010

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Taking of fingerprints and samples: Northern IrelandE+W+N.I.

8Powers to take material in relation to offencesN.I.

Fingerprinting

(1)In the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I.12)), in Article 61 (fingerprinting), after paragraph (5) there is inserted—

(5A)The fingerprints of a person may be taken without the appropriate consent if (before or after the coming into force of this paragraph) he has been arrested for a recordable offence and released and—

(a)in the case of a person who is on bail, he has not had his fingerprints taken in the course of the investigation of the offence by the police; or

(b)in any case, he has had his fingerprints taken in the course of that investigation but paragraph (4A)(a) or (b) applies.

(2)In that Article, after paragraph (5A) (as inserted by subsection (1) above) there is inserted—

(5B)The fingerprints of a person not detained at a police station may be taken without the appropriate consent if (before or after the coming into force of this paragraph) he has been charged with a recordable offence or informed that he will be reported for such an offence and—

(a)he has not had his fingerprints taken in the course of the investigation of the offence by the police; or

(b)he has had his fingerprints taken in the course of that investigation but paragraph (4A)(a) or (b) applies.

(3)In that Article, for paragraph (6) there is substituted—

(6)Subject to this Article, the fingerprints of a person may be taken without the appropriate consent if (before or after the coming into force of this paragraph)—

(a)he has been convicted of a recordable offence, or

(b)he has been given a caution in respect of a recordable offence which, at the time of the caution, he has admitted, and

either of the conditions mentioned in paragraph (6ZA) is met.

(6ZA)The conditions referred to in paragraph (6) are—

(a)the person has not had his fingerprints taken since he was convicted or cautioned;

(b)he has had his fingerprints taken since then but paragraph (4A)(a) or (b) applies.

(6ZB)Fingerprints may only be taken as specified in paragraph (6) with the authorisation of an officer of at least the rank of inspector.

(6ZC)An officer may only give an authorisation under paragraph (6ZB) if the officer is satisfied that taking the fingerprints is necessary to assist in the prevention or detection of crime.

(6ZD)Paragraph (6) shall not apply to a person who, in relation to a sentence in respect of an offence, is released on licence under the Northern Ireland (Sentences) Act 1998 (or has been so released and the licence has lapsed).

(4)In that Article, for paragraph (8A) there is substituted—

(8A)Any power under this Article to take the fingerprints of a person without the appropriate consent, if not otherwise specified to be exercisable by a constable, shall be exercisable by a constable.

Non-intimate samples

(5)In Article 63 of that Order (non-intimate samples), after paragraph (3) there is inserted—

(3ZA)A non-intimate sample may be taken from a person without the appropriate consent if (before or after the coming into force of this paragraph) he has been arrested for a recordable offence and released and—

(a)in the case of a person who is on bail, he has not had a non-intimate sample of the same type and from the same part of the body taken from him in the course of the investigation of the offence by the police; or

(b)in any case, he has had a non-intimate sample taken from him in the course of that investigation but—

(i)it was not suitable for the same means of analysis, or

(ii)it proved insufficient.

(6)In that Article, for paragraph (3A) there is substituted—

(3A)A non-intimate sample may be taken from a person (whether or not he is in police detention or held in custody by the police on the authority of a court) without the appropriate consent if he has been charged with a recordable offence or informed that he will be reported for such an offence and—

(a)he has not had a non-intimate sample taken from him in the course of the investigation of the offence by the police; or

(b)he has had a non-intimate sample taken from him in the course of that investigation but—

(i)it was not suitable for the same means of analysis, or

(ii)it proved insufficient; or

(c)he has had a non-intimate sample taken from him in the course of that investigation and—

(i)the sample has been destroyed pursuant to Article 64ZA or any other enactment, and

(ii)it is disputed, in relation to any proceedings relating to the offence, whether a DNA profile relevant to the proceedings is derived from the sample.

(7)In that Article (non-intimate samples), for paragraph (3B) there is substituted—

(3B)Subject to this Article, a non-intimate sample may be taken from a person without the appropriate consent if (before or after the coming into force of this paragraph)—

(a)he has been convicted of a recordable offence, or

(b)he has been given a caution in respect of a recordable offence which, at the time of the caution, he has admitted, and

either of the conditions mentioned in paragraph (3BA) is met.

(3BA)The conditions referred to in paragraph (3B) are—

(a)a non-intimate sample has not been taken from the person since he was convicted or cautioned;

(b)such a sample has been taken from him since then but—

(i)it was not suitable for the same means of analysis, or

(ii)it proved insufficient.

(3BB)A non-intimate sample may only be taken as specified in paragraph (3B) with the authorisation of an officer of at least the rank of inspector.

(3BC)An officer may only give an authorisation under paragraph (3BB) if the officer is satisfied that taking the sample is necessary to assist in the prevention or detection of crime.

(3BD)Paragraph (3B) shall not apply to—

(a)a person convicted of an offence before 29 July 1996, unless the offence is a qualifying offence by virtue of being—

(i)an offence specified in any of paragraphs (a) to (n) of Article 53A(2), or

(ii)an ancillary offence, within the meaning given by Article 53A(4), in relation to such an offence;

(b)a person given a caution before 29 July 1996;

(c)a person who, in relation to a sentence in respect of an offence, is released on licence under the Northern Ireland (Sentences) Act 1998 (or has been so released and the licence has lapsed).

(8)In that Article, paragraph (10) is repealed.

9Powers to take material in relation to offences outside Northern IrelandN.I.

Fingerprinting

(1)In Article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (fingerprinting), after paragraph (6C) there is inserted—

(6D)Subject to this Article, the fingerprints of a person may be taken without the appropriate consent if—

(a)under the law in force in a country or territory outside Northern Ireland the person has been convicted of an offence under that law (whether before or after the coming into force of this paragraph and whether or not he has been punished for it);

(b)the act constituting the offence would constitute a qualifying offence if done in Northern Ireland (whether or not it constituted such an offence when the person was convicted); and

(c)either of the conditions mentioned in paragraph (6E) is met.

(6E)The conditions referred to in paragraph (6D)(c) are—

(a)the person has not had his fingerprints taken on a previous occasion under that paragraph;

(b)he has had his fingerprints taken on a previous occasion under that paragraph but paragraph (4A)(a) or (b) applies.

(6F)Fingerprints may only be taken as specified in paragraph (6D) with the authorisation of an officer of at least the rank of inspector.

(6G)An officer may only give an authorisation under paragraph (6F) if the officer is satisfied that taking the fingerprints is necessary to assist in the prevention or detection of crime.

Intimate samples

(2)In Article 62 of that Order (intimate samples), after paragraph (2) there is inserted—

(2A)An intimate sample may be taken from a person where—

(a)two or more non-intimate samples suitable for the same means of analysis have been taken from the person under Article 63(3D) (persons convicted of offences outside Northern Ireland etc) but have proved insufficient;

(b)a police officer of at least the rank of inspector authorises it to be taken; and

(c)the appropriate consent is given.

(2B)An officer may only give an authorisation under paragraph (2A) if the officer is satisfied that taking the sample is necessary to assist in the prevention or detection of crime.

(3)In that Article, in paragraph (3), after “or (1A)” there is inserted “ or (2A) ”.

Non-intimate samples

(4)In Article 63 of that Order (other samples), after paragraph (3C) there is inserted—

(3D)Subject to this Article, a non-intimate sample may be taken without the appropriate consent from a person if—

(a)under the law in force in a country or territory outside Northern Ireland the person has been convicted of an offence under that law (whether before or after the coming into force of this paragraph and whether or not he has been punished for it);

(b)the act constituting the offence would constitute a qualifying offence if done in Northern Ireland (whether or not it constituted such an offence when the person was convicted); and

(c)either of the conditions mentioned in paragraph (3E) is met.

(3E)The conditions referred to in paragraph (3D) are—

(a)the person has not had a non-intimate sample taken from him on a previous occasion under that paragraph;

(b)he has had such a sample taken from him on a previous occasion under that paragraph but—

(i)the sample was not suitable for the same means of analysis, or

(ii)it proved insufficient.

(3F)A non-intimate sample may only be taken as specified in paragraph (3D) with the authorisation of an officer of at least the rank of inspector.

(3G)An officer may only give an authorisation under paragraph (3F) if the officer is satisfied that taking the sample is necessary to assist in the prevention or detection of crime.

Interpretation

(5)In Article 53 of that Order (interpretation), in paragraph (1), after the definition of “non-intimate sample” there is inserted—

offence”, in relation to any country or territory outside Northern Ireland, includes an act punishable under the law of that country or territory, however it is described;.

(6)In that Article, at the end there is inserted—

(4)For the purposes of this Part, a person has in particular been convicted of an offence under the law of a country or territory outside Northern Ireland if—

(a)a court exercising jurisdiction under the law of that country or territory has made in respect of such an offence a finding equivalent to a finding that the person is not guilty by reason of insanity; or

(b)such a court has made in respect of such an offence a finding equivalent to a finding that the person is under a disability and did the act charged against him in respect of the offence.

10Information to be given on taking of materialN.I.

Fingerprinting

(1)In Article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (fingerprinting), for paragraph (7) there is substituted—

(7)Where a person's fingerprints are taken without the appropriate consent by virtue of any power conferred by this Article—

(a)before the fingerprints are taken, the person shall be informed of—

(i)the reason for taking the fingerprints;

(ii)the power by virtue of which they are taken; and

(iii)in a case where the authorisation of the court or an officer is required for the exercise of the power, the fact that the authorisation has been given; and

(b)those matters shall be recorded as soon as practicable after the fingerprints are taken.

(2)In that Article, in paragraph (7A)—

(a)for “paragraph (6A)”, in the first place, there is substituted “ paragraph (4AA), (6A) ”;

(b)in paragraph (a), for the words from “(or” to “constable)” there is substituted “ (or, where by virtue of paragraph (4AA), (6A) or (6BA) the fingerprints are taken at a place other than a police station, the constable taking the fingerprints) ”.

(3)In that Article, in paragraph (8) (requirement to record reason for taking fingerprints on custody record), for “the reason for taking them” there is substituted “ the matters referred to in paragraph (7)(a)(i) to (iii) ”.

Intimate samples

(4)In Article 62 of that Order (intimate samples), for paragraphs (5) to (7A) there is substituted—

(5)Before an intimate sample is taken from a person, an officer shall inform him of the following—

(a)the reason for taking the sample;

(b)the fact that authorisation has been given and the provision of this Article under which it has been given; and

(c)if the sample was taken at a police station, the fact that the sample may be the subject of a speculative search.

(6)The reason referred to in paragraph (5)(a) must include, except in a case where the intimate sample is taken under paragraph (2A), a statement of the nature of the offence in which it is suspected that the person has been involved.

(7)After an intimate sample has been taken from a person, the following shall be recorded as soon as practicable—

(a)the matters referred to in paragraph (5)(a) and (b);

(b)if the sample was taken at a police station, the fact that the person has been informed as specified in paragraph (5)(c); and

(c)the fact that the appropriate consent was given.

(5)In that Article, in paragraph (8), the words “or (7A)” are repealed.

(6)In the Police (Northern Ireland) Act 2003, in Part 2 of Schedule 2 (powers exercisable by detention officers), in paragraph 16 (warnings about intimate samples), for “Article 62(7A)(a)” there is substituted “ Article 62(5)(c) ”.

Non-intimate samples

(7)In Article 63 of that Order (non-intimate samples), for paragraphs (6) to (8A) there is substituted—

(6)Where a non-intimate sample is taken from a person without the appropriate consent by virtue of any power conferred by this Article—

(a)before the sample is taken, an officer shall inform him of—

(i)the reason for taking the sample;

(ii)the power by virtue of which it is taken; and

(iii)in a case where the authorisation of an officer is required for the exercise of the power, the fact that the authorisation has been given; and

(b)those matters shall be recorded as soon as practicable after the sample is taken.

(7)The reason referred to in paragraph (6)(a)(i) must include, except in a case where the non-intimate sample is taken under paragraph (3B) or (3D), a statement of the nature of the offence in which it is suspected that the person has been involved.

(8)In that Article, in paragraph (9) (requirement to record matters on custody record), for “paragraph (8), (8A) or (8B)” there is substituted “ paragraph (6) or (8B) ”.

11Speculative searchesE+W+N.I.

(1)In Article 63A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (supplementary), after paragraph (1D) there is inserted—

(1E)Where fingerprints or samples have been taken from any person under Article 61(6) or 63(3B) (persons convicted etc), the fingerprints or samples, or information derived from the samples, may be checked against any of the fingerprints, samples or information mentioned in paragraph (1)(a) or (b).

(1F)Where fingerprints or samples have been taken from any person under Article 61(6D), 62(2A) or 63(3D) (offences outside Northern Ireland), the fingerprints or samples, or information derived from the samples, may be checked against any of the fingerprints, samples or information mentioned in paragraph (1)(a) or (b).

(2)In Schedule 4 to the International Criminal Court Act 2001 (taking of fingerprints or non-intimate samples), in paragraph 7(3)(b), after “Article 63A(1)” there is inserted “ , (1E) or (1F) ”.

12Power to require attendance at police stationN.I.

(1)In Article 63A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (fingerprinting and samples: supplementary provisions), for paragraphs (4) to (8) there is substituted—

(4)Schedule 2A (fingerprinting and samples: power to require attendance at police station) shall have effect.

(2)In that Order, after Schedule 2 there is inserted—

SCHEDULE 2AN.I.Fingerprinting and samples: power to require attendance at police station

Part 1N.I.Fingerprinting
Persons arrested and releasedN.I.

1(1)A constable may require a person to attend a police station for the purpose of taking his fingerprints under Article 61(5A).

(2)The power under sub-paragraph (1) may not be exercised in a case falling within Article 61(5A)(b) (fingerprints taken on previous occasion insufficient etc) after the end of the period of six months beginning with the day on which the appropriate officer was informed that Article 61(4A)(a) or (b) applied.

(3)In sub-paragraph (2) “appropriate officer” means the officer investigating the offence for which the person was arrested.

Persons charged etcN.I.

2(1)A constable may require a person to attend a police station for the purpose of taking his fingerprints under Article 61(5B).

(2)The power under sub-paragraph (1) may not be exercised after the end of the period of six months beginning with—

(a)in a case falling within Article 61(5B)(a) (fingerprints not taken previously), the day on which the person was charged or informed that he would be reported, or

(b)in a case falling within Article 61(5B)(b) (fingerprints taken on previous occasion insufficient etc), the day on which the appropriate officer was informed that Article 61(4A)(a) or (b) applied.

(3)In sub-paragraph (2)(b) “appropriate officer” means the officer investigating the offence for which the person was charged or informed that he would be reported.

Persons convicted etc of an offence in Northern IrelandN.I.

3(1)A constable may require a person to attend a police station for the purpose of taking his fingerprints under Article 61(6).

(2)Where the condition in Article 61(6ZA)(a) is satisfied (fingerprints not taken previously), the power under sub-paragraph (1) may not be exercised after the end of the period of two years beginning with—

(a)the day on which the person was convicted or cautioned, or

(b)if later, the day on which this Schedule comes into force.

(3)Where the condition in Article 61(6ZA)(b) is satisfied (fingerprints taken on previous occasion insufficient etc), the power under sub-paragraph (1) may not be exercised after the end of the period of two years beginning with—

(a)the day on which an appropriate officer was informed that Article 61(4A)(a) or (b) applied, or

(b)if later, the day on which this Schedule comes into force.

(4)In sub-paragraph (3)(a) “appropriate officer” means an officer of the police force which investigated the offence in question.

(5)Sub-paragraphs (2) and (3) do not apply where the offence is a qualifying offence (whether or not it was such an offence at the time of the conviction or caution).

Persons subject to a control orderN.I.

F14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Persons convicted etc of an offence outside Northern IrelandN.I.

5A constable may require a person to attend a police station for the purpose of taking his fingerprints under Article 61(6D).

Multiple attendanceN.I.

6(1)Where a person's fingerprints have been taken under Article 61 on two occasions in relation to any offence, he may not under this Schedule be required to attend a police station to have his fingerprints taken under that Article in relation to that offence on a subsequent occasion without the authorisation of an officer of at least the rank of inspector.

(2)Where an authorisation is given under sub-paragraph (1) —

(a)the fact of the authorisation, and

(b)the reasons for giving it,

shall be recorded as soon as practicable after it has been given.

Part 2N.I.Intimate samples
Persons suspected to be involved in an offenceN.I.

7A constable may require a person to attend a police station for the purpose of taking an intimate sample from him under Article 62(1A) if, in the course of the investigation of an offence, two or more non-intimate samples suitable for the same means of analysis have been taken from him but have proved insufficient.

Persons convicted etc of an offence outside Northern IrelandN.I.

8A constable may require a person to attend a police station for the purpose of taking a sample from him under Article 62(2A) if two or more non-intimate samples suitable for the same means of analysis have been taken from him under Article 63(3D) but have proved insufficient.

Part 3N.I.Non-intimate samples
Persons arrested and releasedN.I.

9(1)A constable may require a person to attend a police station for the purpose of taking a non-intimate sample from him under Article 63(3ZA).

(2)The power under sub-paragraph (1) may not be exercised in a case falling within Article 63(3ZA)(b) (sample taken on a previous occasion not suitable etc) after the end of the period of six months beginning with the day on which the appropriate officer was informed of the matters specified in Article 63(3ZA)(b)(i) or (ii).

(3)In sub-paragraph (2) “appropriate officer” means the officer investigating the offence for which the person was arrested.

Persons charged etcN.I.

10(1)A constable may require a person to attend a police station for the purpose of taking a non-intimate sample from him under Article 63(3A).

(2)The power under sub-paragraph (1) may not be exercised in a case falling within Article 63(3A)(a) (sample not taken previously) after the end of the period of six months beginning with the day on which he was charged or informed that he would be reported.

(3)The power under sub-paragraph (1) may not be exercised in a case falling within Article 63(3A)(b) (sample taken on a previous occasion not suitable etc) after the end of the period of six months beginning with the day on which the appropriate officer was informed of the matters specified in Article 63(3A)(b)(i) or (ii).

(4)In sub-paragraph (3) “appropriate officer” means the officer investigating the offence for which the person was charged or informed that he would be reported.

Persons convicted etc of an offence in Northern IrelandN.I.

11(1)A constable may require a person to attend a police station for the purpose of taking a non-intimate sample from him under Article 63(3B).

(2)Where the condition in Article 63(3BA)(a) is satisfied (sample not taken previously), the power under sub-paragraph (1) may not be exercised after the end of the period of two years beginning with—

(a)the day on which the person was convicted or cautioned, or

(b)if later, the day on which this Schedule comes into force.

(3)Where the condition in Article 63(3BA)(b) is satisfied (sample taken on a previous occasion not suitable etc), the power under sub-paragraph (1) may not be exercised after the end of the period of two years beginning with—

(a)the day on which an appropriate officer was informed of the matters specified in Article 63(3BA)(b)(i) or (ii), or

(b)if later, the day on which this Schedule comes into force.

(4)In sub-paragraph (3)(a) “appropriate officer” means an officer of the police force which investigated the offence in question.

(5)Sub-paragraphs (2) and (3) do not apply where the offence is a qualifying offence (whether or not it was such an offence at the time of the conviction or caution).

Persons subject to a control orderN.I.

F112. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Persons convicted etc of an offence outside Northern IrelandN.I.

13A constable may require a person to attend a police station for the purpose of taking a non-intimate sample from him under Article 63(3D).

Multiple exercise of powerN.I.

14(1)Where a non-intimate sample has been taken from a person under Article 63 on two occasions in relation to any offence, he may not under this Schedule be required to attend a police station to have another such sample taken from him under that Article in relation to that offence on a subsequent occasion without the authorisation of an officer of at least the rank of inspector.

(2)Where an authorisation is given under sub-paragraph (1) —

(a)the fact of the authorisation, and

(b)the reasons for giving it,

shall be recorded as soon as practicable after it has been given.

Part 4N.I.General and supplementary
Requirement to have power to take fingerprints or sampleN.I.

15A power conferred by this Schedule to require a person to attend a police station for the purposes of taking fingerprints or a sample under any provision of this Order may be exercised only in a case where the fingerprints or sample may be taken from the person under that provision (and, in particular, if any necessary authorisation for taking the fingerprints or sample under that provision has been obtained).

Date and time of attendanceN.I.

16(1)A requirement under this Schedule—

(a)shall give the person a period of at least seven days within which he must attend the police station; and

(b)may direct him so to attend at a specified time of day or between specified times of day.

(2)In specifying a period or time or times of day for the purposes of sub-paragraph (1), the constable shall consider whether the fingerprints or sample could reasonably be taken at a time when the person is for any other reason required to attend the police station.

(3)A requirement under this Schedule may specify a period shorter than seven days if—

(a)there is an urgent need for the fingerprints or sample for the purposes of the investigation of an offence; and

(b)the shorter period is authorised by an officer of at least the rank of inspector.

(4)Where an authorisation is given under sub-paragraph (3)(b)—

(a)the fact of the authorisation, and

(b)the reasons for giving it,

shall be recorded as soon as practicable after it has been given.

(5)If the constable giving a requirement under this Schedule and the person to whom it is given so agree, it may be varied so as to specify any period within which, or date or time at which, the person must attend; but a variation shall not have effect unless confirmed by the constable in writing.

EnforcementN.I.

17A constable may arrest without warrant a person who has failed to comply with a requirement under this Schedule.

(3)In that Order, in Article 29 (fingerprinting of certain offenders), paragraphs (1) to (3) are repealed.

(4)In the Police (Northern Ireland) Act 2003, in Part 2 of Schedule 2 (powers exercisable by detention officers)—

(a)in paragraph 11 (attendance at police station for fingerprinting), for “Article 29(1) of the 1989 Order (fingerprinting of offenders)” there is substituted “ Schedule 2A to the 1989 Order (fingerprinting and samples: power to require attendance at a police station) ”;

(b)in paragraph 19 (attendance at police station for the taking of a sample), for the words from “paragraph (4)” to “samples)” there is substituted “ Schedule 2A to the 1989 Order (fingerprinting and samples: power to require attendance at a police station) ”.

Textual Amendments

13“Qualifying offence”N.I.

(1)After Article 53 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (interpretation) there is inserted—

53AQualifying offence” etc

(1)In this Part, “qualifying offence” means—

(a)an offence specified in paragraph (2), or

(b)an ancillary offence relating to such an offence.

(2)The offences referred to in paragraph (1)(a) are—

(a)murder;

(b)manslaughter;

(c)false imprisonment;

(d)kidnapping;

(e)an offence under section 4, 16, 18, 20 to 24 or 47 of the Offences Against the Person Act 1861;

(f)an offence under section 2 or 3 of the Explosive Substances Act 1883;

(g)an offence under section 20 of the Children and Young Persons Act (Northern Ireland) 1968 (c. 34 (N.I.));

(h)an offence under section 9 or 10 of the Theft Act (Northern Ireland) 1969 (c. 16 (N.I.));

(i)an offence under Article 3 of the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426 (N.I. 4)) required to be charged as arson;

(j)an offence under Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I.1978/1047 (N.I. 17);

(k)an offence under Article 172B of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154 (N.I. 1)) involving an accident which caused a person's death;

(l)an offence under section 1 of the Aviation Security Act 1982;

(m)an offence under Article 4 of the Child Abduction (Northern Ireland) Order 1985 (S.I. 1985/1638 (N.I. 17));

(n)an offence under section 9 of the Aviation and Maritime Security Act 1990;

(o)an offence under sections 57 to 59 of the Sexual Offences Act 2003;

(p)an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004;

(q)an offence under Article 58, 59 or 60 of the Firearms (Northern Ireland) Order 2004 (S.I. 2004/702 (N.I. 3));

(r)an offence for the time being listed in section 41(1) of the Counter-Terrorism Act 2008;

(s)an offence under any of Articles 5 to 26, 32, 33, 37 to 40, 43 to 54, 62, 63, 65 to 71, 73 and 74 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)).

(3)The Secretary of State may by order amend paragraph (2) (subject to Article 89).

[F2(3A)The power to make an order under paragraph (3) is exercisable by the Department of Justice (and not by the Secretary of State) so far as the power may be used to make provision which could be made by an Act of the Northern Ireland Assembly without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998).]

(4)In paragraph (1)(b) “ancillary offence”, in relation to an offence, means—

(a)aiding, abetting, counselling or procuring the commission of the offence;

(b)an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to the offence (including, in relation to times before the commencement of that Part, an offence of incitement);

(c)attempting or conspiring to commit the offence.

[F3(2)Amend Article 89 of that Order (orders and regulations) as follows—

(a)in paragraph (1)—

(i)after “made” insert “by the Secretary of State”; and

(ii)after “Article” insert “53A or”;

(b)in paragraph (2)—

(i)after “Article 53,” insert “53A,”; and

(ii)for “or 66,” insert “, 66 or 81”.]

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