Cookies on Legislation.gov.uk

The cookies on legislation.gov.uk do two things: they remember any settings you've chosen so you don't have to choose them on every page, and they help us understand how people browse our website, so we can make improvements and fix problems. We need your consent to use some of these cookies.

Search Legislation

Advanced Search

Police, Crime, Sentencing And Courts Act 2022

Contents

Part 10: Management of offenders

Chapter 1: Serious Violence Reduction Orders

Section 165: Serious violence reduction orders

  1. This section introduces a new civil order in the Sentencing Code, the Serious Violence Reduction Order ("SVRO"). Subsection (1) inserts a new Chapter 1A, comprising of sections 342A to 342L, into Part 11 of the Sentencing Code.
  2. New section 342A provides the power to make a SVRO. Subsection (1) provides that SVROs can be made on application from the prosecution in relation to a person aged 18 or over, and convicted of an offence (as described in section 342A(3) and (4)) after the provisions in relation to SVROs come into force (that is, the first appointed day as defined in subsection (14)).
  3. New section 342A(2) sets out the conditions in either subsection (3) or (4) and the condition in subsection (5) must be met in order for the court to be able to make an SVRO.
  4. New section 342A(3) provide that an SVRO can be made if the court is satisfied on the balance of probabilities that a bladed article or offensive weapon was used by the offender in the commission of the offence, or that the offender had a bladed article or offensive weapon with them when the offence was committed. New section 342A(4) provides that an SVRO can be made if the offender convicted of the offence did not use the weapon or have the weapon with them, but another person used a bladed article or offensive weapon, or had a bladed article or offensive weapon with them when the offence was committed, and the offender knew, or ought to have known, that would be the case. By virtue of new section 342A(15) references to an offence in subsection (4) include any offence arising out of the same facts as the offence which the offender was convicted of.
  5. These provisions set out that those convicted of any offence involving where a bladed article or offensive weapons was used in the commission of the offence or was present when the offence was committed can be considered for SVROs, including, for example, a conviction for unlawful possession of such weapons or for using someone to mind a weapon. They also provide that if an offence involving a bladed article or an offensive weapon is committed by more than one person (or one set of facts gives rise to a number of individuals being convicted of different offences relating to that set of facts), every offender involved in the offence or offences, who knew, or ought to have known of the weapon can be considered for an SVRO, even if only one of them used the bladed article or offensive weapon, or had it with them during the commission of the offence.
  6. New section 342A(5) provides that in order to make an SVRO, the court must be satisfied that the order is necessary: (i) to protect the public from harm involving a bladed article or an offensive weapon; (ii) to protect any particular member of the public (including the offender) from such harm; or (iii) to prevent the offender from committing an offence involving a bladed article or offensive weapon. As a result, an SVRO can be made not only to protect the community from the risk posed by the offender but also to protect the offender themselves from the risk of harm involving a bladed article or offensive weapon by helping to deter them from committing knife or offensive weapons related offences.
  7. New section 342A(6) provides that the court may make a SVRO only if the court is also dealing with the offender for the offence that may result in an SVRO made. New section 342A(6)(b) provides that SVROs cannot be made if the court gives an absolute discharge to the offender.
  8. New subsection 342A(7) provides that the court may hear evidence from both the offender and the prosecution when considering whether to make an SVRO.
  9. New section 342A(8) provides that court may consider evidence (in relation to whether to make an SVRO) that would not have been admissible in the proceedings in which the offender was convicted.
  10. New subsection 342A(9) provides that if an application for a serious violence reduction order is made, the court may adjourn proceedings on the application after sentencing the offender. New subsections (10) to (12) make further provision in relation to any adjourned proceedings.
  11. New section 342A(13) provides that the court must explain in plain language to the offender the powers that a constable has in respect of the offender while the order is in effect, and the effects of the order, that is, any requirements imposed by the order, the consequences of breaching an SVRO and what constitutes a breach.
  12. New section 342B provides for the requirements and prohibitions imposed by an SVRO.
  13. New section 342B(1) defines serious violence reduction order for the purposes of new Chapter 1A of Part 11 of the Code. Serious violence reduction order means an order made in respect of an offender that imposes on the offender the requirements set out in section 342B(2) and (4) (in relation to notification of information) and any other requirement or prohibitions specified in regulations made by the Secretary of State.
  14. New section 342B(2) and (3) set out the information that the offender must provide to the police within three days of the order taking effect. This information is the name, or names, of the offender on the day the notification is given, the offender’s home address on that day and any other address where the offender regularly stays.
  15. New section 342B(4) and (5) provide that the offender must notify the police if they change their name or home address, or if they decide to live for a period of one month or more at an address not previously notified to the police. This information must be provided to the police within three days of such change.
  16. New section 342B(6) specifies that the offender must provide the information required in person by attending a police station in a police area in which the offender lives and by giving an oral notification to a police officer, or any person authorised by the officer in charge of the station.
  17. New section 342B(7) provides that any regulations made by the Secretary of State under subsection (1)(b) to add further restrictions or prohibitions to an SVRO can be made only after a report on the pilot under section 166 is laid before Parliament and if the Secretary of State considers that it is appropriate to make the regulations for the purpose of assisting police constables to exercise the power to search the offender conferred by new section 342E.
  18. New subsection 342B(8) provides that regulations made by the Secretary of State under subsection (1)(b) are subject to the affirmative resolution procedure.
  19. New section 342B(9) provides a definition of "home address" for the purposes of the notification requirements.
  20. New section 342C(1) provides that a court may impose on the offender any additional requirement or prohibition specified in regulations made by the Secretary of State, subject to the condition in subsection (2).
  21. New section 342C(2) describes the condition as one that would assist police constables to exercise the power to search the offender conferred by section 342E. For example, any additional condition that would assist the police with identification of any individual subject to an SVRO would in turn assist with the exercise of the stop and search power.
  22. New section 342C(3) provides that regulations made by the Secretary of State in relation to this section can only be made after a report on the pilot under section 166 is laid before Parliament.
  23. New section 342C(4) sets out that the regulations are subject to the affirmative resolution procedure.
  24. New section 342D(1) sets out that the order takes effect on the day it is made. New section 342D(3) and (4) allow for the order not to take effect until the offender is released from custody or ceases to be subject to a custodial sentence.
  25. New section 342D(2) sets out that an SVRO must contain a start date and will be for a fixed period of a minimum of six months and a maximum of two years.
  26. New section 342D(5) provides that where a court makes an SVRO and the offender had already been subject to an order, the earlier SVROs ceases to have effect. This will ensure that an offender is not subject to more than one SVRO at the same time.
  27. New section 342E provides the police with a power to search a person subject to an SVRO, and to detain them for the purpose of carrying out that search, provided that such person is in a public place. The purpose of this power is to check if the person has a bladed article or an offensive weapon with them.
  28. New section 342E(4) provides that the police office may seize and retain items found in the course of the search which they reasonably suspect to be a bladed article or an offensive weapon.
  29. New section 342E(6) provides that a constable may use reasonable force, if necessary, in order to exercise the powers conferred in this section.
  30. New section 342E(7) provides that this power may be used in addition to existing powers held by the police under common law or by virtue of any other enactment, for example the power to stop and search under section 1 of PACE.
  31. New section 342F confers a power for the Secretary of State to make regulations regulating the retention, safe keeping, disposal and destruction of any items retained by constable under the power in new section 342E. New section 342F(3) provides that such regulations are subject to the negative procedure.
  32. New section 342G(1) provides that an offender who is subject to an SVRO commits an offence if they:
    • fail to comply with any requirements or prohibitions set out in the order, without reasonable excuse;
    • knowingly provides false information to the police when purporting to comply with the requirements of the order (for example compliance with the notification requirements in new section 342B);
    • tell a police constable that they are not subject to an SVRO, when in fact they are; or
    • intentionally obstructs a police constable exercising the stop and search power under new section 342E.
  1. The maximum penalty for each of these offences is on summary conviction, imprisonment for 12 months, or in relation to an offence committed before the coming into force of paragraph 24(2) of Schedule 22 to the Sentencing Act 2020, six months, a fine or both. The maximum penalty for each of these offences on conviction on indictment is imprisonment for two years, a fine, or both.
  2. New section 342G(4) provides that where a person is convicted of an offence under this section, an order for conditional discharge is not a sentencing option available to the court.
  3. New section 342H(1) and (2) provide that an application to the appropriate court (as defined by new section 342H(9)) may be made for variation, renewal or discharge of an SVRO by the offender, or by the police force in which the offender lives, has committed the offence where the police believe that the offender intends to come to or by the chief constable of the British Transport Police force where the offence on the basis of which the SVRO was made is an offence committed within the jurisdiction of British Transport Police. This provision allows for an application to be made to modify an SVRO to reflect changing circumstances.
  4. New section 342H(4) and (5) provide that the application must be made in accordance with the rules of court, and that the court must hear the person making the application and any other person as provided by subsection (2) who wishes to be heard before making a decision.
  5. New section 342H(5) provides that the court may vary, renew or discharge an order as it sees appropriate, subject to subsection (7). New section 342H(7) provides that the court may renew an order, or vary an order so as to lengthen its duration, only if it considers doing so is necessary to protect the public or any particular member of the public from the risk of harm involving a bladed article or offensive weapon, or to prevent the offender from committing an offence involving a bladed article or offensive weapon.
  6. New section 342H(8) provides that the court must explain in plain language to the offender the effects of the variation or renewal of the order, and the powers that a police constable has under the stop and search power in section 342E.
  7. New section 342I(1) provides that an offender issued with a SVRO can appeal against a decision to make the order as if the order were a sentence passed on the offender for an offence.
  8. New section 342I (2) to (5) provide rights of appeal following a decision on an application for an order varying, renewing, or discharging an SVRO, including provisions as to which court an appeal can be made to, and that the Crown Court may make such orders as may be necessary and such incidental and consequential orders as appears to it to be appropriate.
  9. New section 342J provides that the Secretary of State may issue guidance to the police constables, Chief Officers of police and the Chief Constable of the British Transport Police Force in relation to SVROs. . Such guidance may be revised, and the Secretary of State must arrange for it to be published. The guidance may include guidance about the exercise by police of their functions under Chapter 1A of Part 11 of the Sentencing Code; guidance about identifying offenders in respect of whom it may be appropriate for applications for SVROs to be made; and guidance about providing assistance to prosecutors in connection with applications for SVROs.
  10. New section 342J(4) provides that police constables, Chief Officers of police and the Chief Constable of the British Transport Police Force must have regard to any such guidance..
  11. New section 342K provides that before issuing guidance under new section 342J, the Secretary of State must lay a draft of the guidance before parliament. If, within the 40-day period (as defined in new section 342K(4) and (5)), either House of Parliament resolves not to approve the draft guidance, the guidance may not be issued. If no such resolution is made within that period, the Secretary of State may issue the guidance.
  12. New section 342L defines terms used in new Chapter 1A of Part 11 of the Code.
  13. Subsections (2) and (3) make consequential amendments as a result of new Chapter 1A of Part 11 of the Code. Subsection (2) amends section 80(3) of the Sentencing Code to include a reference to offences in section 342G (offences relating to an SVRO) in a list of circumstances where an order for conditional discharge is not available. Subsection (3) amends the Prosecution of Offences Act 1985 to provide for the Director of Public Prosecutions to conduct applications for SVROs under new section 342A of the Sentencing Code.

Section 166: Serious violence reduction orders: Piloting

  1. This section makes provision for two conditions which must be met before the provisions relating to SVROs in section 165 can be brought into force across the whole of England and Wales for all purposes. Firstly, SVROs must be piloted in one or more area in England and Wales for one or more specified purposes; and secondly, the Secretary of State must lay a report before Parliament on the operation of the pilot. Subsection (4) provides that report must in particular include information about the number of offenders in respect of whom an SVRO has been made; information about the offences that were the basis for applications as a result of which SVROs were made; information about the exercise by constables of the stop and search powers in section 342E of the Code; an assessment of the impact of the operation of Chapter 1A of Part 11 of the Code on people with protected characteristic (within the meaning of the Equality Act 2010); an initial assessment of the impact of SVROs on the reoffending rates of offenders in respect of whom such orders have been made; an assessment of the impact on offenders of being subject to a SVRO; information about the number of offences committed under section 342G of the Code (offences relating to an SVRO) and the number of suspected offences under that section that have been investigated.
  2. Subsections (5) and (6) provide that regulations made under section 208(1) bringing into force section 165 for the purpose of piloting may provide for a specified period for the pilot and that subsequent regulations may continue the pilot for a further specified period.

Chapter 2: Knife Crime Prevention Orders

Section 167: Knife crime prevention order on conviction: adjournment of proceedings

  1. The section inserts subsections (9A) to (9D) into section 19 of the Offensive Weapons Act 2019 (knife crime prevention orders made on conviction), making it explicit that, if an application for a knife crime prevention order is made following a defendant's conviction for an offence, the court may adjourn proceedings on the application after sentencing the defendant.

Chapter 3: Management of sex offenders

Section 168: Locations for sexual offender notification

  1. Registered sex offenders must notify certain personal details to the police, including their name and home address, and notify the police of any changes to those details. Section 87 of the 2003 Act provides a power for the Secretary of State to make regulations specifying the police stations at which an offender may notify the police of the relevant information. Section 168 amends section 87 to remove the requirement for the Secretary of State to prescribe a list of police stations for this purpose and makes this the responsibility of the chief officer of police. The requirement for the annual statutory instrument is withdrawn, in lieu of this, chief officers of police will publish a list of police stations in their area, where an offender may notify.

Section 169: Offences outside the United Kingdom: notification requirements

  1. Where an offender convicted, cautioned or having had a relevant finding made against them in respect of a relevant sexual offence overseas currently lives in, or intends to travel to, the United Kingdom, section 97 of the 2003 Act provides a power for the police to make an application to the courts for a Notification Order, which makes them subject to the notification requirements for registered sex offenders as if they had been convicted in the UK.
  2. Subsection (1) inserts new sections 96ZA, 96ZB and 97ZC into the 2003 Act which replace sections 97 to 103 of that insofar as they apply to England and Wales (sections 97 to 103 are repealed by subsection (5)).
  3. New sections 96ZA and 96ZB remove the need for the police to seek a court order to place notification requirements on an individual convicted of an equivalent, relevant sexual offence (Schedule 3 offences in the 2003 Act) in a foreign court. The requirement for a court order will be replaced with a power for the police to serve a notice requiring the relevant offenders to notify when authorised by an officer of the rank inspector or above.
  4. A notice may be withdrawn in writing by the police but the withdrawal must be authorised by an officer of the rank inspector or above.
  5. Where an offender is under the age of 18 the police may serve a parental notice in addition to a notice on the offender. Such a notice will place the obligations of the offender on the parents until the offender reaches the age of 18 or the notice is withdrawn.
  6. Enabling the police to make an individual who committed a relevant offence outside of the United Kingdom subject to the notification requirements without the involvement of the court will streamline the process, supporting better management of those who pose a risk of sexual harm
  7. New Section 96ZC provides modifications and clarifications to the notification requirements insofar as they apply to a person to whom this section applies.
  8. New section 96ZD provides a route of appeal to a magistrates’ court retaining the broad grounds for appeal which are in place in current legislation.

Section 170: Notification orders: Scotland

  1. Subsections (1) to (5) amend sections 97 to 100 of the 2003 Act to reflect the fact that as a result of the provisions in section 169 these provisions will now only apply to Scotland; no substantive changes are made to the law in Scotland. Sections 97 to 100 currently operate in Scotland subject to the modifications made by section 103 of the 2003 Act which is repealed by subsection (6).
  2. Subsection (6) also repeals section 101 (notification orders and interim notification orders: appeals in England and Wales) of the 2003 Act in consequence of the repeal of sections 97 to 100 insofar as they apply to England and Wales.

Section 171: Applications by British Transport Police and Ministry of Defence Police

  1. This section amends sections 103A, 103F, 103J, 122A, 122B, 122E and 122J of the 2003 Act to enable the chief constable of the British Transport Police and Ministry of Defence Police to apply for SHPOs or SROs and interim SHPOs and SROs in respect of individuals who pose a risk of sexual harm within their jurisdiction. If an application is made by the chief constable of the British Transport Police or Ministry of Defence Police, that person must notify the chief officer of police for the relevant police force area as soon as practicable.

Section 172: List of countries

  1. Section 172 makes provision for the establishment of a list of countries and territories considered to be at high risk of child sexual exploitation or abuse by UK nationals and residents.
  2. Subsection (1) confers the power on the Secretary of State to prepare such a list or direct a relevant person to do so on their behalf. A relevant person is defined at subsection (11) as a person whose statutory functions relate to the prevention or detection of crime, or other law enforcement purposes. This could include for example, the National Crime Agency.
  3. Subsections (2) and (3)(b) provides that the Secretary of State must lay the list before Parliament and subsection (4) provides that as soon as practicable thereafter the person who prepared the list must publish it.
  4. Subsection (5) provides that the list of countries has effect for the purposes of the provisions of the Sentencing Code and 2003 Act relating to an application for or making of an SHPO, interim SHPO, SRO or interim SRO and the variation, renewal or discharge of such orders. Through these orders a court may restrict an individual’s travel to any country or countries, where proportionate and necessary to protect children and vulnerable adults outside the UK from sexual harm.
  5. Subsection (6) provides that the person who prepared the list must keep it under review and may prepare a revised list. A revised list might be necessitated, for example, by a change in intelligence about the risk of child sexual exploitation or abuse posed by UK nationals and residents towards a given country.
  6. Subsection (9) provides that the Secretary of State may withdraw the list at any time.

Section 173: Requirement for the court and certain persons to have regard to the list of countries

  1. Section 173 provides for a requirement upon applicants (including the police and National Crime Agency) and the courts to have regard to the list of countries in respect of applications for SHPOs and SROs and in particular whether a prohibition on foreign travel is necessary to protect children from sexual harm from the defendant outside the United Kingdom.
  2. New section 346(2) of the Code and, new section 103A(3A) of the 2003 Act (as inserted by subsection (1) and (4) respectively) require courts to have regard to the list in considering whether an SHPO is necessary and in particular whether a foreign travel restriction as part of an SHPO is necessary for these purposes. Such a decision would not be based on the list itself; instead, the list would be considered alongside the merits of the civil order application and any representations made by the defendant.
  3. New section 103A(4B) of the 2003 Act (as inserted by subsection (4)) requires the applicant of an SHPO to have regard to the list in considering whether a defendant has acted in a way such that an SHPO would be necessary and whether a prohibition on foreign travel should be included in the SHPO.
  4. Subsection (5) requires the court and applicant to have regard to the list when applying for or making applications to vary or renew a SHPO.
  5. Subsections (6) to (9) replicate these provisions for the SRO and the interim versions of SHPOs and SROs.

Section 174: Standard of proof

  1. This section amends sections 103A(3) and 122A(6) of the 2003 Act to provide that the court when considering an application for a SHPO and SRO respectively should apply the civil standard of proof (‘balance of probabilities’), rather than the criminal standard of proof, when determining whether the individual the application is made in respect of has done the act of a sexual nature specified in the application. This amendment brings these orders in line with other civil orders, for example Domestic Abuse Protection Orders as introduced by the Domestic Abuse Act 2021.

Section 175: Sexual harm prevention orders: power to impose positive requirements

  1. Sections 103A to 103K of the 2003 Act, provide a route via an application to the court for a chief officer of police or the Director General of the National Crime Agency to obtain a SHPO in respect of a qualifying offender who has since acted in such a way as to give reasonable cause to believe it is necessary for such an order to be made. These orders currently place a range of restrictions, or negative requirements, on individuals depending on the nature of the case. These can include restrictions on contact with specific persons and restrictions on travel.
  2. This section amends the 2003 Act and the Code to enable the courts to impose positive obligations as conditions of an SHPO. Positive obligations allow the courts to require individuals made subject to an order to engage in specified activity. This can include a requirement to attend a behaviour change programme, alcohol or drug treatment, or to take a polygraph test. Enabling the courts to impose positive obligations as well as restrictions will strengthen the management of those who pose a risk of sexual harm and increase prevention through rehabilitation.
  3. Subsections (5) and (11) amend section 350 of the Code and section 103E of the 2003 Act respectively to enable an SHPO to be renewed or varied so as to include additional positive obligations (for example, where an individual’s circumstances have changed).
  4. Subsection (12) amends section 103F(3) of the 2003 Act to enable the court to impose positive obligations in interim SHPOs.
  5. Subsection (13) amends section 103I of the 2003 Act, the effect of which is to make a failure to comply with a positive obligation without reasonable excuse a criminal offence, in line with the current provisions on breaching negative obligations, a conviction for which is punishable by up to five years’ imprisonment.

Section 176: Sexual risk orders: power to impose positive requirements

  1. This section makes equivalent amendments to the provisions of the 2003 Act relating to SROs to those made by section 175 in relation to SHPOs to enable the courts to impose positive obligations as conditions of an SRO. This can include a requirement to attend a behaviour change programme, alcohol or drug treatment, or to taking a polygraph test. Subsection (6) amends section 122H of the 2003 Act, the effect of which is to make a failure to comply with a positive obligation without reasonable excuse a criminal offence, in line with the current provisions on breaching negative obligations. A conviction for a breach is punishable by up to five years’ imprisonment and that individual becoming subject to the notification requirements for sex offenders.

Section 177: Positive requirements: further amendments

  1. This section amends the Code, the 2003 Act and the Abusive Behaviour and Sexual Harm (Scotland) Act 2006 so that positive obligations in an SHPO or SRO can be enforced and varied in other parts of the United Kingdom.
  2. Subsection (1) amends section 351 of the Sentencing Code, which provides for variations of a SHPO by a court in Northern Ireland, to enable such variations to include positive obligations.
  3. Subsections (2) and (3) amend sections 113 and 128 of the 2003 Act so that a breach of a positive requirement under an SHPO or SRO will constitute a breach in Northern Ireland.
  4. Subsection (4) amends section 136ZA of the 2003 Act to provide that positive requirements of SHPOs and SROs apply throughout the United Kingdom.
  5. Subsections (5) and (6) amend sections 136ZC and 136ZD of the 2003 Act so that courts in Northern Ireland can vary positive requirements of SHPOs and SROs.
  6. Subsection (7) amends section 37 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2006 to make it an offence in Scotland to breach a positive requirement under a SHPO, SRO or an equivalent order made elsewhere in the United Kingdom.

Section 178: Electronic monitoring requirements

  1. This section amends the Code and the 2003 Act to make express provision for a court to impose electronic monitoring conditions as a positive requirement, as part of an SHPO or SRO. Electronic monitoring requirements enable the person who is responsible for the monitoring, "the responsible person", to monitor and record, via an electronic tag, information on a subjects compliance with an order’s conditions, for instance curfews or exclusion zones.
  2. Subsection (2) amends section 343 of the Code to provide that an electronic monitoring requirement may be imposed to support the monitoring of an individual’s compliance with other requirements of an SHPO (for example, the operation of an exclusion zone).
  3. Subsection (4) inserts new section 348A and 348B into the Code. New section 348A sets out the conditions that must be satisfied to enable an electronic monitoring requirement to be attached to an SHPO.
  4. New section 348A(2) specifies that where another person’s cooperation is required in order to secure the electronic monitoring, the monitoring cannot be required without that person’s consent. This may include, for example, the occupier of the premises where the perpetrator lives or other persons living in the same premises as the offender.
  5. New section 348A(3) obliges the court to ensure that electronic monitoring arrangements are available in the relevant local area (as defined in subsection (4)) before imposing an electronic monitoring requirement. In practice, the court would be notified of the availability of such arrangements by the Ministry of Justice.
  6. New section 348A(5) provides that an SHPO which includes an electronic monitoring requirement must specify the person who is responsible for the monitoring ("the responsible person") and new section 348A(6) provides that the responsible person must be of a description specified in regulations made by the Secretary of State (such regulations are not subject to any parliamentary procedure).
  7. New section 348A(6) provides that the responsible person must be of a description specified in regulations made by the Secretary of State (such regulations are not subject to any parliamentary procedure).
  8. New section 348A(7) sets out the requirements for installation and maintenance of the electronic monitoring apparatus, including the requirements for the offender to submit to monitoring apparatus being fitted or installed, inspected or repaired. This subsection also prohibits the perpetrator from interfering with the monitoring apparatus and requires the perpetrator to take steps to keep the apparatus in working order, including keeping the equipment charged as directed. Failure to adhere to these requirements would constitute a breach of the SHPO.
  9. An electronic monitoring requirement may not apply for more than 12 months, but this may be extended for a further period of no more than 12 months each time (new section 384A(8) and (9)).
  10. New section 348B requires the Secretary of State to issue a code of practice relating to the processing of data gathered in the course of electronic monitoring of individuals under electronic monitoring requirements imposed by SHPOs. The processing of such data will be subject to the requirements of the General Data Protection Regulation and the Data Protection Act 2018. The code of practice issued under new section 348B is intended to set out the appropriate tests and safeguards for the processing of such data, in order to assist with compliance of the data protection legislation. For example, information such as the length of time for retaining data and the circumstances in which it may be permissible to share data with the police to assist with crime detection.
  11. Subsection (10) inserts new sections 103FA and 103FB which make equivalent provisions for SHPOs made under the 2003 Act as for those made under the Code set out above.
  12. Subsections (11) to (16) amend sections 122A, 122D, 122E, 136ZA and 138(3) of the 2003 Act and insert new sections 122EA and 122EB, these changes have the effect of making equivalent provisions for electronic monitoring of SROs as for SHPOs.

Section 179: Positive requirements and electronic monitoring requirements: service courts

  1. This section amends section 137 of the 2003 Act which modifies the provisions in Part 2 of the 2003 Act relating to court orders, convictions, findings, offences and proceedings to apply in the context of service courts. The amendments to section 137(3) make further modifications to Part 2 to reflect the amendments made in Chapter 2 of Part 10 in relation to SHPOs.

Section 180: Enforcement of requirements of orders made in Scotland or Northern Ireland

  1. This section amends sections 103I, 113, 122, 122H and 128 of the 2003 Act to enable orders created in Scotland under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 to be enforceable in England and Wales and Northern Ireland. This enables SHPOs or SROs imposed by a Scottish court to be enforced by courts in England and Wales or Northern Ireland when these orders are made following the commencement of the provisions enabling them in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. These amendments will ensure that a Scottish SHPO or SRO is enforceable in other jurisdictions.
  2. Subsection (7) amends section 136ZA of the 2003 Act to enable Scottish SHPOs and SROs to apply throughout the United Kingdom.

Section 181: Effect of conviction for breach of Scottish order etc

  1. This section amends sections 122I and 129 of the 2003 Act so that an offender who is convicted of a breach of a Scottish SHPO or SRO is made subject to notification requirements where they were not already under such requirements.

Section 182: Orders superseding, or superseded by, Scottish orders

  1. This section amends section 136ZB of the 2003 Act and section 349 of the Sentencing Code to enable Scottish SHPOs and SROs to supersede other sex offender management orders in the United Kingdom when made at a later date.

Section 183 and Schedule 18: Variation of order by court in another part of the United Kingdom

  1. Section 183 introduces Schedule 18 which provides for the mutual recognition of all sex offender management orders throughout the United Kingdom, by enabling the courts to vary an order in respect of an offender in their jurisdiction regardless of where the order originated.
  2. Part 1 of Schedule 18 makes provision for the variation of a SHPO or SRO made in England, Wales or Scotland by a court in Northern Ireland by amending sections 136ZC and 136ZD of the 2003 Act and section 351 of the Code.
  3. Part 2 makes provision for the variation of a SHPO or SRO made in England or Wales, or a sexual offences prevention order, risk of sexual harm order or foreign travel order made in Northern Ireland by a court in Scotland by inserting new sections 136ZE and 136ZF to the 2003 Act and new section 351A of the Code.
  4. Part 3 makes provision for the variation of a SHPO or SRO made in Scotland or a sexual offences prevention order, risk of sexual harm order or foreign travel order made in Northern Ireland by a court in England and Wales by inserting new sections 136ZG, 136ZH, 136ZI and 136ZJ to the 2003 Act and new section 351A of the Code.

Chapter 4: Management of terrorist offenders

Section 184: Terrorist offenders released on licence: arrest without warrant pending recall decision

  1. Subsection (1) inserts new section 43B into the Terrorism Act 2000 (the "2000 Act"), which enables the police to arrest a terrorist offender who has been released on licence, and is suspected to have breached their licence conditions, where there is a terrorism risk and it is considered necessary to detain the offender until a recall decision is made by the probation service.
  2. New section 43B(1) limits the use of the power to quite specific circumstances in practice. If an offender commits a terrorism offence, they can be arrested under section 41 of the 2000 Act. If they breach their licence conditions but can be recalled before a terrorism risk develops, urgent arrest will not be necessary. This power could be used, for example, when a terrorist offender refuses to go with the police to their Approved Premises after release from prison, where arrest would not be possible under existing legislation. Section 114(2) of the 2000 Act allows the reasonable use of force in making such an arrest.
  3. The power of arrest applies only to offenders on licence convicted of terrorism or terrorism-connected offences (see new section 43B(4) and (5)). This safeguards against its misuse by limiting the cohort in scope and addresses the threat posed by particularly high-risk individuals. Section 247A of the 2003 Act and the equivalents for Scotland and Northern Ireland define offences under counter-terrorism legislation and offences with a terrorism connection, including service offences.
  4. New section 43B(2), read with the definition of "relevant period" in new section 43B(6), limits the detention period (to six hours in England and Wales and 12 hours in Scotland or Northern Ireland) following arrest to prevent infringement of the offender’s rights while allowing a necessary period for a decision on recall to be processed. It is expected that the police and probation will co-operate to facilitate this process, including by the police only making arrests when probation intend to recall. New section 43B(3) further protects the offender’s rights by applying the relevant detention conditions in Schedule 8 to the 2000 Act, as modified by subsection (2) of the Section, as for other terrorism-related arrests, in proportion to the relatively short length of the detention.
  5. New section 43B(7) enables a constable in one part of the UK to exercise the power of arrest in any part of the UK. The cross-agency co-operation informing exercise of the power will generally occur within rather than across jurisdictions.

Section 185: Power to search terrorist offenders released on licence

  1. Section 185 inserts new section 43C into the 2000 Act, which enables the police to make a personal search of a terrorist offender on licence.
  2. New section 43C(1) specifies that the stop and search may be conducted for purposes connected with protecting the public from a risk of terrorism and new section 43C(2), (8), and (9) provide that the offender must be required to submit to the search by their licence conditions (in the case of England and Wales, see the Criminal Justice (Sentencing) (Licence Conditions) Order 2015). In practice, it is expected that the relevant licence condition will only be applied to a limited cohort of terrorist offenders who pose a high risk of serious harm. It provides a deterrent for offenders on licence to take weapons with them when travelling and exposes offender managers to less danger during meetings with high risk offenders. This is not possible under the normal stop and search powers in section 43 of the 2000 Act or, in exceptional circumstances, section 47A, which are not designed for compliance or assurance purposes.
  3. New section 43C(3) allows a search to be conducted in locations where the police have lawful access but the public may not. This will include probation premises.
  4. New section 43C(7) allows anything carried by the offender to be searched. This allows for the identification of weapons, as well as phones -which may be possessed contrary to licence conditions – that could be used to contact terrorist networks and thus pose a terrorism risk. Under section 2(9) of PACE, it is not permitted to require the removal of any clothing in public apart from an outer coat, jacket, or gloves.
  5. New section 43C(4) to (6) allow a vehicle to be searched and follow section 43(4A), (4B), and (4C) of the 2000 Act. Section 116(2) of the 2000 Act provides for a vehicle to be stopped and section 114(2) provides for the reasonable use of force. This addresses the possibility of vehicle attacks and prevents offenders in scope from avoiding being searched by travelling in a vehicle.
  6. New section 43C(10) enables a constable in one part of the UK to exercise the power of search in any part of the UK. The cross-agency co-operation informing exercise of the power will generally occur within rather than across jurisdictions.

Section 186: Search of premises of offender released on licence for purposes connected with protection from a risk of terrorism

  1. Section 186 inserts new section 43D into the 2000 Act, which enables the police to enter and search the premises of an offender released on licence.
  2. New section 43D(1) stipulates that the police first obtain a warrant from a court. New section 43D(2) provides the requirements for this, including that the court be satisfied that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for the police to enter and search the premises specified in the application. New section 43D(7) and (8) define the offenders in scope. Chapter 6 of Part 12 of the CJA 2003 and Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 and the equivalents in Scotland and Northern Ireland capture any offender serving a custodial sentence imposed in any part of the UK who has been released on licence. This includes offenders convicted of a non-terrorism offence who are nevertheless thought to pose a terrorism risk, for example if they are known to have associated with terrorist offenders in prison and intelligence suggests they may engage in terrorist activity shortly after release. This is not possible under other premises search powers, including paragraph 1 of Schedule 5 to the 2000 Act, which is limited to terrorist investigations, and section 56A of the Counter-Terrorism Act 2008, which is limited to convicted terrorist offenders subject to notification requirements. Cross-agency consideration of the terrorism risk posed is expected before submission of an application for a warrant by the police.
  3. New section 43D(3) to (6) provide for the access to enter and search premises afforded by the warrant. This includes multiple occupancy premises, which may apply for example in searching an offender’s Approved Premises, and entry on multiple occasions, for example when new intelligence of a terrorism risk comes to light. When deciding whether to apply for and use a warrant the police will consider the necessity and proportionality of doing so in all cases.
  4. The definition of "premises" at section 121 of the 2000 Act applies here. This is any place and includes vehicles. As per section 116(1), the power to search premises confers the power to search containers.

Section 187: Powers of seizure and retention

  1. Section 187 inserts new section 43E into the 2000 Act, which governs the seizure and retention of items found when the search powers in new sections 43C and 43D are exercised.
  2. New section 43E(1) links the section to the powers of personal and premises search. New section 43E(7) applies it to the cohorts stipulated there: terrorist offenders with a specific licence condition for the personal search and any offenders with a terrorism risk for the premises search. The powers of seizure and retention help ensure public protection, including by allowing the confiscation of weapons, and supporting investigation, such as by reviewing phones that may be used to contact terrorist networks.
  3. New section 43E(2) sets out the grounds for seizure, including at subsection (2)(b) to check an offender’s compliance with licence conditions and then to consider the risk of terrorism this entails. This addresses scenarios in which items are found that could be of terrorism risk but which require further investigation to confirm this, and which would not necessarily result in automatic recall. Ascertaining both breach of licence and terrorism risk is expected to be conducted through cross-agency agreement. Items that may be seized include computerised information, by virtue of section 20 of PACE. For the avoidance of doubt, computerised information can be seized in Scotland.
  4. New section 43E(3) to (6) govern retention. New section 43E(5) sets a seven day limit on the retention on anything that is not required for the purposes set out in subsection (4); this gives a proportionate time for the item to be investigated where the terrorism risk is not immediately clear.
  5. New section 43E(8) preserves the ability of a court to deliver property to a person after it has come into police possession under section 1 of the Police (Property) Act 1897.

Section 188 and Schedule 19: Sections 184 to 187: consequential provision

  1. Section 188 introduces Schedule 19, which makes consequential amendments to sections 158 to 161 to PACE, the Criminal Justice and Police Act 2001, the Counter-Terrorism Act 2008, and equivalent enactments in Scotland and Northern Ireland.

Section 189: Arrangements for assessing etc risks posed by certain offenders

  1. Section 189 makes amendments to the multi-agency public protection arrangements ("MAPPA") regime set out in sections 325 to 327 of the CJA 2003 to ensure MAPPA management of certain terrorist offenders once released on licence, or for the duration they are subject to terrorism notification requirements, and to enable other offenders considered to pose a terrorist risk to be managed in that way. It also expands the potential for information-sharing as part of MAPPA.
  2. Subsection (2) and (3)(a) amend section 325 of the CJA 2003 to create a new MAPPA category of "relevant terrorist offenders". The term ‘relevant terrorist offenders’ is to be defined by provision inserted into section 327 of the CJA 2003 by subsection (10). It includes those convicted of offences listed in Schedule 19ZA to the CJA 2003 (which is proposed to be substituted by the Counter-Terrorism and Sentencing Act 2021 ), equivalent service offences or offences found to have been aggravated by a terrorist connection, and given a custodial sentence of 12 months or more. It also includes persons who carried out acts amounting to such an offence but who were found unfit to plead or not guilty by way of insanity.
  3. Subsection (3)(b) inserts new subsection (2)(c) into section 325 of the CJA 2003, so that any convicted person who is considered by the responsible authority to pose a risk of involvement in terrorism-related activity can also be managed under MAPPA.
  4. Subsection (4) replaces the existing information-sharing power contained in section 325(4) of the CJA 2003. It does not restrict or displace any other existing information-sharing powers used by MAPPA agencies. New section 325(4) and (4A) provide a new power for the disclosure of information between the responsible authority, duty to cooperate agencies and other persons whom the responsible authority considers may contribute to the assessment and management of risk as defined under section 325(2).
  5. New section 325(4B) provides clarity in relation to disclosure of information about a person subject to MAPPA. Disclosure under section 325 will not breach any obligation of confidence owed by a person disclosing information, or any other restriction on the disclosure of information. This means that any information held by MAPPA agencies, or by other relevant persons, can be disclosed, for the purposes of MAPPA.
  6. New section 325(4C) places a limit on disclosure of information to confirm that subsection (4) does not permit disclosure which would contravene data protection legislation or would be prohibited by the Investigatory Powers Act 2016.
  7. New section 325(4D) to (4F) provide that a person who is permitted to disclose or receive information under MAPPA arrangements to be treated as a competent authority for the purposes of Part 3 of the Data Protection Act 2018, with the exception of intelligence services.
  8. New section 325(4G) clarifies that the new power created by new subsection (4) does not affect other information-sharing powers used by MAPPA agencies.
  9. Subsection (5) includes the new parties defined in subsection (4A) within the list of ‘duty to cooperate’ agencies.
  10. Subsection (6) inserts new definitions.
  11. Subsections (7) to (10) amend section 327 of the CJA 2003 which covers interpretation of section 325.
  12. Subsections (8) and (9) make minor amendments to section 327(3) and (4) to clarify the definition of relevant sexual or violent offender and ensure that those sentenced to life fall under this definition.
  13. Subsection (10) amends section 327 of the CJA 2003 to provide the definition of "relevant terrorist offender" referred to above. This new category is defined largely by reference to the notification requirement provisions of the Counter-Terrorism Act 2008.

Chapter 5: Football banning Orders

Section 190: Football Banning Orders: relevant offences

  1. Subsections (1) and (2) introduce the amendments to the Football Spectators Act 1989 ("the 1989 Act"), and Schedule 1 of that Act, respectively.
  2. Subsections (3) to (7) amend Schedule 1 to the 1989 Act which sets out the list of relevant offences which, on conviction, may attract a football banning order preventing further attendance at regulated football matches.
  3. Subsections (3) to (5) add to Schedule 1 the offence under section 4 of the Public Order Act 1986 (fear or provocation of violence) when committed:
    • at, or when entering or leaving, any premises during a period relevant to a football match;
    • on a journey to or from a football match and where the court makes a declaration that the offence related to a football match; or
    • otherwise committed during a period relevant to a football match and where the court makes a declaration that the offence related to a football match.
  4. Subsection (6) adds to Schedule 1 any offence under Part 3 or 3A of the Public Order Act 1986 (racial hatred or hatred against persons on religious grounds or grounds of sexual orientation) and any offence under section 31 of the Crime and Disorder Act 1998 (racially or religiously aggravated public order offences) where the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection to a football organisation.
  5. Subsection (6) also adds to Schedule 1 communications offences under section 1 of the Malicious Communications Act 1988 (offence of sending letter, electronic communication or article with intent to cause distress or anxiety) and under section 127(1) of the Communications Act 2003 (improper use of public telecommunications network), not otherwise covered in the Schedule, where the court has stated on sentencing that the offence is aggravated by racial or religious hostility, or hostility related to disability, sexual orientation or transgender identity (the grounds set out in section 66(1) of the Code) and where the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection to a football organisation.
  6. Subsections (7) and (8) define a "football organisation" for the purposes of Schedule 1 as a "regulated football organisation" for the purposes of Part 2 of the 1989 Act, being an organisation that relates to association football and which is prescribed, or it’s description is prescribed, by order made by the Secretary of State. Subsection (7) also provides that an order setting out where a person has a "prescribed connection" to a football organisation can include a past or future connection, such as a player announced as having agreed to sign for a team but not yet employed by that team or a football manager who has recently retired.
  7. Subsections (9) to (11) amend subsections (1) and (5) of section 23 of the 1989 Act whereby a "declaration of relevance", which the court must make for offences committed away from a football stadium to be "relevant offences" for the purposes of section 14A and Schedule 1, can now relate not only to football matches but also football organisations, or persons with a prescribed connection to a football organisation. This encompasses, for example, the remote hate offences against football organisations or persons connected to football, such as a racist tweet against a football team or player. The court will now be able to make a declaration of relevance that an offence is football-related in those circumstances.
  8. Subsection (12) provides that this section does not apply in relation to offences committed before the provision comes into force.

Section 191: Football banning orders: power to amend list of relevant offences

  1. Subsection (1) creates a new power for the Secretary of State to add, modify or remove a reference to an offence or a description of offence to Schedule 1 to the 1989 Act (the list of relevant offences for banning orders on conviction), and make related consequential amendments to that Act. The power is subject to the affirmative resolution procedure.
  2. Subsections (2) to (4) make amendments to section 22A of the 1989 Act, to enable regulations or orders made under Part 2 of the Act (such as prescribing a football related organisation) to make supplementary provision.

Section 192: Football banning orders: requirement to make order on conviction etc

  1. Subsection (1) amends the test in section 14A of the 1989 Act under which a court may impose a banning order on an individual convicted of a relevant football related offence (as defined in Schedule 1 to that Act). New section 14A(2) sets out that the court must make a banning order in respect of the offender unless it considers that there are particular circumstances relating to the offence or to the offender which would make it unjust in all the circumstances to do so. Where the court does not make a banning order, it must state in open court the reasons for not doing so, under section 14A(3).
  2. Subsections (2) to (4) make equivalent amendment to section 22 of the 1989 Act (banning orders arising out of offences outside England and Wales). Section 22 provides the courts with the power to impose a banning order on persons convicted of an offence in a country or territory outside England and Wales if that offence has been specified in an Order in Council as corresponding to an offence in Schedule 1 to the 1989 Act. The new subsections (4) and (5) provide that a court must make a banning order in respect of an offender convicted of a corresponding offence overseas unless the conviction is the subject of legal proceedings in that country questioning the conviction, or the court considers that there are particular circumstances relating to the offence or to the person which would make it unjust to make a banning order in all the circumstances. If the court decides not to make a banning order on these grounds, it must state in open court the reasons for not doing so, per new subsection (5A).
  3. Subsection (5) provides that this section does not apply in relation to offences committed before the provision comes into force.

Back to top