Sexual Offences (Incitement, Jurisdiction and Protected Material) (Bailiwick of Guernsey) Law, 2009

View printable version

To access the legislation in printable format, please click the "view printable version" button.

PROJET DE LOI

ENTITLED

The Sexual Offences (Incitement, Jurisdiction and Protected Material) (Bailiwick of Guernsey) Law, 2009

ARRANGEMENT OF SECTIONS

PART I

SEXUAL OFFENCES OUTSIDE THE BAILIWICK

Incitement

1. Incitement to commit certain sexual acts outside the Bailiwick.

2. Section 1 - supplementary.

Jurisdiction

3. Extension of jurisdiction.

PART II

SEXUAL OFFENCES AND PROTECTED MATERIAL

Meaning of protected material, etc

4. Meaning of "protected material".

5. Meaning of other expressions.

Regulation of disclosure to defendant

6. Regulation of disclosure by Her Majesty’s Procureur.

7. Disclosure to defendant’s Advocate.

8. Disclosure to unrepresented defendant.

9. Further disclosure by Her Majesty’s Procureur.

Supplementary

10. Offences.

11. Application of Part II.

PART III

INTERPRETATION, AMENDMENT AND CITATION

Interpretation

12. Interpretation.

Amendment and citation

13. Power to amend certain provisions of Law by Ordinance.

14. Citation.

SCHEDULE: Sexual offences for the purposes of this Law.

PROJET DE LOI

ENTITLED

The Sexual Offences

(Incitement, Jurisdiction and Protected Material)

(Bailiwick of Guernsey) Law, 2009

THE STATES, in pursuance of their Resolutions of the 27^th April, 2006[a] and the 25^th February, 2009[b], have approved the following provisions which, subject to the Sanction of Her Most Excellent Majesty in Council, shall have force of law in the Bailiwick of Guernsey.

PART I

SEXUAL OFFENCES OUTSIDE THE BAILIWICK

Incitement

Incitement to commit certain sexual acts outside the Bailiwick.

1. (1) This section applies where -

(a) any act done by a person in the Bailiwick would amount to the offence of incitement to commit a sexual offence but for the fact that the whole or part of what he had in mind would not take place in the Bailiwick,

(b) the whole or part of what he had in mind was intended to take place in a country or territory outside the Bailiwick, and

(2) Where this section applies -

(a) what he had in mind is to be treated as the sexual offence referred to in subsection (1)(a) for the purposes of any charge of incitement brought in respect of that act, and

(b) any such charge is accordingly triable in the Bailiwick.

(3) Any act done by means of a message (however communicated) is to be treated as done in the Bailiwick if the message is sent or received in the Bailiwick.

Section 1 - supplementary.

2. (1) Conduct punishable under the law in force in any country or territory is an offence under that law for the purposes of section 1 however it is described in that law.

(2) Subject to subsection (3), the condition in section 1(1)(c) is to be taken to be met unless, not later than the day determined by the court, the defendant serves on Her Majesty’s Procureur a notice -

(a) stating that, on the facts as alleged with respect to what he had in mind, the condition is not in his opinion met,

(b) showing his grounds for that opinion, and

(3) The court, if it thinks fit, may permit the defendant to require Her Majesty’s Procureur to show that the condition is met without service of a notice under subsection (2).

(4) In the Royal Court the question of whether the condition is met is to be decided by the Bailiff alone.

(5) In any proceedings in respect of any offence triable by virtue of section 1, it is immaterial to guilt whether or not the accused was a British citizen at the time of any act or other event proof of which is required for conviction of the offence.

(6) References to an offence of incitement to commit a sexual offence include an offence triable in the Bailiwick as such an incitement by virtue of section 1 (without prejudice to subsection (2) of that section).

(7) Subsection (6) applies to references in any enactment or document except those in section 1 of this Law and in Part II of the Criminal Justice (Attempts, Conspiracy and Jurisdiction) (Bailiwick of Guernsey) Law, 2006[c].

Jurisdiction

Extension of jurisdiction.

3. (1) Subject to subsection (2), any act done by a person in a country or territory outside the Bailiwick which -

(a) constituted an offence under the law in force in that country or territory, and

(b) would constitute a sexual offence if it had been done in the Bailiwick,

constitutes that sexual offence under the law of the Bailiwick.

(2) Proceedings by virtue of this section may be brought only -

(a) against a person who is a British citizen or resident in the Bailiwick, and

(b) in relation to a sexual offence which can be committed against a person irrespective of their age, where the victim of the offence was under 16 at the time of its commission.

(3) An act punishable under the law in force in any country or territory constitutes an offence under that law for the purposes of this section, however it is described in that law.

(4) Subject to subsection (5), the condition in subsection (1)(a) is to be taken to be met unless, not later than the day determined by the court, the defendant serves on Her Majesty’s Procureur a notice -

(a) stating that, on the facts as alleged with respect to the act in question, the condition is not in his opinion met,

(b) showing his grounds for that opinion, and

(5) The court, if it thinks fit, may permit the defendant to require Her Majesty’s Procureur to show that the condition is met without service of a notice under subsection (4).

(6) In the Royal Court the question of whether the condition is met is to be decided by the Bailiff alone.

PART II

SEXUAL OFFENCES AND PROTECTED MATERIAL

Meaning of protected material, etc

Meaning of "protected material".

4. (1) In this Part of this Law "protected material", in relation to proceedings for a sexual offence, means a copy (in whatever form) of any of the following material -

(a) a statement relating to that or any other sexual offence made by any victim of the offence (whether the statement is recorded in writing or in any other form),

(b) a photograph or pseudo-photograph of any such victim, or

which is a copy given by Her Majesty's Procureur to any person under this Part of this Law.

(2) For the purposes of subsection (1) a person is, in relation to any proceedings for a sexual offence, a victim of that offence if -

(a) the charge, summons or indictment by which the proceedings are instituted names that person as a person in relation to whom that offence was committed, or

(b) that offence can, in Her Majesty’s Procureur’s opinion, be reasonably regarded as having been committed in relation to that person,

and a person is, in relation to any such proceedings, a victim of any other sexual offence if that offence can, in Her Majesty’s Procureur’s opinion, be reasonably regarded as having been committed in relation to that person.

(3) In this Part of this Law, where the context so permits, and subject to subsection (4) -

(a) references to protected material include references to any part of any such material, and

(b) references to a copy of any such material include references to any part of any such copy.

(4) Nothing in this Part of this Law -

(a) so far as it refers to a defendant making any copy of -

(i) any protected material, or

(ii) a copy of any such material,

applies to a manuscript copy which is not a verbatim copy of the whole of that material or copy, or

(b) so far as it refers to a defendant having in his possession any copy of any protected material, applies to a manuscript copy made by him which is not a verbatim copy of the whole of that material.

Meaning of other expressions.

5. (1) In this Part of this Law, unless the context requires otherwise-

"proceedings" means, subject to subsection (2), criminal proceedings, and

"relevant proceedings", in relation to any material which has been disclosed by Her Majesty’s Procureur under this Part of this Law, means any proceedings for the purposes of which it has been so disclosed or any further proceedings for the sexual offence in question.

(2) For the purposes of this Part of this Law references to proceedings for a sexual offence include references to -

(a) any appeal or application for leave to appeal brought or made by or in relation to a defendant in such proceedings, and

(b) any petition recommending the exercise of Her Majesty’s Prerogative of mercy in relation to any such defendant.

(3) In this Part of this Law, in the context of Her Majesty’s Procureur giving a copy of any material to any person -

(a) references to Her Majesty’s Procureur include references to a person acting on his behalf, and

(b) where any such copy falls to be given to the defendant’s Advocate, references to the defendant’s Advocate include references to a person acting on behalf of the defendant’s Advocate.

Regulation of disclosure to defendant

Regulation of disclosure by Her Majesty’s Procureur.

6. (1) Where, in connection with any proceedings for a sexual offence, any statement or other material falling within any of paragraphs (a) to (c) of section 4(1) would (apart from this section) fall to be disclosed by Her Majesty’s Procureur to the defendant -

(a) Her Majesty’s Procureur shall not disclose that material to the defendant, and

(b) it shall instead be disclosed under this Law in accordance with whichever of subsections (2) and (3) is applicable.

(2) If -

(a) the defendant has an Advocate, and

(b) the defendant’s Advocate gives Her Majesty’s Procureur the undertaking required by section 7,

Her Majesty’s Procureur shall disclose the material in question by giving a copy of it to the defendant’s Advocate.

(3) If subsection (2) is not applicable, Her Majesty’s Procureur shall disclose the material in question by giving a copy of it to the appropriate person for the purposes of section 8 in order for that person to show that copy to the defendant under that section.

(4) Where under this Part of this Law a copy of any material falls to be given to any person by Her Majesty’s Procureur, any such copy -

(a) may be in such form as Her Majesty’s Procureur thinks fit, and

(b) where the material consists of information which has been recorded in any form, need not be in the same form as that in which the information has already been recorded.

(5) Once a copy of any material is given to any person under this Part of this Law by Her Majesty’s Procureur, the copy shall (in accordance with section 4(1)) be protected material for the purposes of this Law.

Disclosure to defendant’s Advocate.

7. (1) For the purposes of this Part of this Law the undertaking which a defendant’s Advocate is required to give in relation to any protected material given to him under this Part of this Law is an undertaking by him to discharge the obligations set out in subsections (2) to (7).

(2) He must take reasonable steps to ensure -

(a) that the protected material, or any copy of it, is only shown to the defendant in circumstances where it is possible to exercise adequate supervision to prevent the defendant retaining possession of the material or copy or making a copy of it, and

(b) that the protected material is not shown and no copy of it is given, and its contents are not otherwise revealed, to any person other than the defendant, except so far as it appears to him necessary to show the material or give a copy of it to any such person -

(i) in connection with any relevant proceedings, or

(ii) for the purposes of any assessment or treatment of the defendant (whether before or after conviction).

(3) He must inform the defendant -

(a) that the protected material is such material for the purposes of this Law,

(b) that the defendant can only inspect that material, or any copy of it, in circumstances such as are described in subsection (2)(a), and

(i) to have that material, or any copy of it, in his possession otherwise than while inspecting it or the copy in such circumstances, or

(ii) to give that material or any copy of it, or otherwise reveal its contents, to any other person.

(4) He must, where the protected material or a copy of it has been shown or given in accordance with subsection (2)(b)(i) or (ii) to a person other than the defendant, inform that person -

(a) that that person must not give any copy of the material, or otherwise reveal its contents -

(i) to any person other than the defendant, or

(ii) to the defendant otherwise than in circumstances such as are described in subsection (2)(a), and

(b) that it would be an offence for that person to do so.

(5) He must, where he ceases to act as the defendant’s Advocate at a time when any relevant proceedings are current or in contemplation -

(a) inform Her Majesty’s Procureur of that fact, and

(b) if he is informed by Her Majesty’s Procureur that the defendant has a new Advocate who has given Her Majesty’s Procureur the undertaking required by this section, give the protected material, and any copies of it in his possession, to the defendant’s new Advocate.

(6) He must, at the time of giving the protected material to the new Advocate under subsection (5), inform him -

(a) that the material is protected material for the purposes of this Law, and

(b) of the extent to which -

(i) that material has been shown by him, and

(ii) any copies of it have been given by him,

to any other person (including the defendant).

(7) He must keep a record of every occasion on which the protected material was shown, or a copy of it was given, as mentioned in subsection (6)(b).

Disclosure to unrepresented defendant.

8. (1) This section applies where, in accordance with section 6(3), a copy of any material falls to be given by Her Majesty's Procureur to the appropriate person for the purposes of this section in order for that person to show that copy to the defendant under this section.

(2) Subject to subsection (3), the appropriate person in such a case is -

(a) if the defendant is detained in the States Prison, the governor or any person nominated by the governor for the purposes of this section, and

(b) otherwise a police officer of at least the rank of sergeant.

(3) The Home Department may by regulations provide that, in such circumstances as are specified in the regulations, the appropriate person for the purposes of this section shall be a person of any class or description so specified.

(4) The appropriate person shall take reasonable steps to ensure -

(b) that, subject to paragraph (a), the defendant is given such access to that material, or a copy of it, as he reasonably requires in connection with any relevant proceedings, and

(c) that that material is not shown and no copy of it is given, and its contents are not otherwise revealed, to any person other than the defendant.

(5) Her Majesty’s Procureur shall, at the time of giving the protected material to the appropriate person, inform him -

(a) that the material is protected material for the purposes of this Law, and

(b) that he is required to discharge the obligation set out in subsection (4) in relation to that material.

(6) Her Majesty’s Procureur shall at that time also inform the defendant -

(a) that the material is protected material for the purposes of this Law,

(b) that the defendant can only inspect that material, or any copy of it, in circumstances such as are described in subsection (4)(a), and

(i) to have that material, or any copy of it, in his possession otherwise than while inspecting it or the copy in such circumstances, or

(ii) to give that material or any copy of it, or otherwise reveal its contents, to any other person,

as well as informing him of the effect of subsection (7).

(7) If -

(a) the defendant requests Her Majesty’s Procureur in writing to give a further copy of the material mentioned in subsection (1) to some other person, and

(b) it appears to Her Majesty’s Procureur to be necessary to do so -

(i) in connection with any relevant proceedings, or

(ii) for the purposes of any assessment or treatment of the defendant (whether before or after conviction),

Her Majesty’s Procureur shall give such a copy to that other person.

(8) Her Majesty’s Procureur may give such a copy to some other person where no request has been made under subsection (7) but it appears to him that in the interests of the defendant it is necessary to do so as mentioned in paragraph (b) of that subsection.

(9) Her Majesty’s Procureur shall, at the time of giving such a copy to a person under subsection (7) or (8), inform that person -

(a) that the copy is protected material for the purposes of this Law,

(b) that he must not give any copy of the protected material or otherwise reveal its contents -

(i) to any person other than the defendant, or

(ii) to the defendant otherwise than in circumstances such as are described in subsection (4)(a), and

(10) If Her Majesty’s Procureur -

(a) receives a request from the defendant under subsection (7) to give a further copy of the material in question to another person, but

(b) does not consider it to be necessary to do so as mentioned in paragraph (b) of that subsection and accordingly refuses the request,

he shall inform the defendant of his refusal.

Further disclosure by Her Majesty’s Procureur.

9. (1) Where -

(a) any material has been disclosed in accordance with section 6(2) to the defendant’s Advocate, and

(b) at a time when any relevant proceedings are current or in contemplation the Advocate -

(i) ceases to act as the defendant’s Advocate in circumstances where section 7(5)(b) does not apply, or

(ii) dies or becomes incapacitated,

that material shall be further disclosed under this Law in accordance with whichever of section 6(2) or (3) is for the time being applicable.

(2) Where -

(a) any material has been disclosed in accordance with section 6(3), and

(b) at a time when any relevant proceedings are current or in contemplation the defendant acquires an Advocate who gives Her Majesty’s Procureur the undertaking required by section 7,

that material shall be further disclosed under this Law, in accordance with section 6(2), to the defendant’s Advocate.

Supplementary

Offences.

10. (1) Where any material is disclosed under this Part of this Law in connection with any proceedings for a sexual offence, it is an offence for the defendant -

(a) to have the protected material, or any copy of it, in his possession otherwise than while inspecting it or the copy in circumstances such as are described in section 7(2)(a) or 8(4)(a), or

(b) to give that material or any copy of it, or otherwise reveal its contents, to any other person.

(2) Where any protected material, or any copy of any such material, has been shown or given to any person in accordance with section 7(2)(b)(i) or (ii) or section 8(7) or (8), it is an offence for that person to give any copy of that material or otherwise reveal its contents -

(a) to any person other than the defendant, or

(b) to the defendant otherwise than in circumstances such as are described in section 7(2)(a) or 8(4)(a).

(3) Subsections (1) and (2) apply whether or not any relevant proceedings are current or in contemplation (and references to the defendant shall be construed accordingly).

(4) A person guilty of an offence under this section is liable -

(a) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding level 5 on the uniform scale, or to both,

(b) on conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or to both.

(5) Where a person is charged with an offence under this section relating to any protected material or copy of any such material, it is a defence to prove that, at the time of the alleged offence, he was not aware, and neither suspected nor had reason to suspect, that the material or copy in question was protected material or (as the case may be) a copy of any such material.

(6) The court before which a person is tried for an offence under this section may (whether or not he is convicted of that offence) make an order requiring him to return any protected material, or any copy of any such material, in his possession to Her Majesty’s Procureur.

(7) Nothing in subsection (1) or (2) shall be taken to apply to -

(a) any disclosure made in the course of any proceedings before a court or in any report of any such proceedings, or

(b) any disclosure made or copy given by a person when returning any protected material, or a copy of any such material, to Her Majesty’s Procureur or the defendant’s Advocate,

and accordingly nothing in section 7 or 8 shall be read as precluding the making of any disclosure or the giving of any copy in circumstances falling within paragraph (a) or (as the case may be) paragraph (b) of this subsection.

Application of Part II.

11. Nothing in this Part of this Law applies to any proceedings for a sexual offence where the defendant was charged with the offence before the date of commencement of this Part of this Law.

PART III

INTERPRETATION, AMENDMENT AND CITATION

Interpretation

Interpretation.

12. (1) In this Law -

"Bailiwick" means the Bailiwick of Guernsey,

"defendant", in Part II, and in relation to any proceedings for a sexual offence, means any person charged with that offence, whether or not he has been convicted,

"enactment" means any Law, Ordinance or subordinate legislation,

"Her Majesty’s Procureur" includes Her Majesty’s Comptroller and any person acting as prosecutor (and see section 5(3)),

"inform" means inform in writing,

"photograph" and "pseudo-photograph" shall be construed in accordance with section 9 of the Protection of Children (Bailiwick of Guernsey) Law, 1985[d],

"proceedings" and "relevant proceedings" : see section 5,

"protected material" : see section 4,

"sexual offence" means an offence listed in the Schedule,

"subordinate legislation" means any regulation, rule, order, rule of court, resolution, scheme, byelaw or other instrument made under any enactment and having legislative effect,

"uniform scale" means the uniform scale of fines for the time being in force under the Uniform Scale of Fines (Bailiwick of Guernsey) Law, 1989[e].

(2) The Interpretation (Guernsey) Law, 1948[f] applies to the interpretation of this Law throughout the Bailiwick.

(3) Any reference in this Law to an enactment is a reference thereto as from time to time amended, re-enacted (with or without modification), extended or applied.

Amendment and citation

Power to amend certain provisions of Law by Ordinance.

13. (1) The States may by Ordinance amend -

(a) section 3 so as to amend the meaning of the expression "protected material",

(b) section 12(1) so as to amend the meaning of any expression defined therein or to define any other expression, and

where they consider it necessary or expedient to do so for the purpose of -

(i) enhancing or protecting the reputation of the Bailiwick and its criminal justice system,

(ii) improving or enhancing the investigation, prevention or detection of crime,

(iii) facilitating the instigation of, or otherwise for the purposes of, criminal proceedings,

(iv) discharging any international obligation to which the Bailiwick is subject, or

(v) assisting, in the interests of the public or otherwise, any authority which appears to the States to exercise in a place outside the Bailiwick functions corresponding to any of the functions of Her Majesty's Procureur or the police under or by virtue of this Law.

(2) An Ordinance under this Law -

(a) may be amended or repealed by a subsequent Ordinance hereunder, and

(b) may contain such consequential, incidental, supplementary, transitional and savings provisions as may appear to be necessary or expedient (including, without limitation, provision making consequential amendments to this Law and any other enactment).

(3) Any power conferred by this Law to make an Ordinance may be exercised -

(a) in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of cases,

(b) so as to make, as respects the cases in relation to which it is exercised -

(i) the full provision to which the power extends, or any lesser provision (whether by way of exception or otherwise),

(ii) the same provision for all cases, or different provision for different cases or classes of cases, or different provision for the same case or class of case for different purposes,

(iii) any such provision either unconditionally or subject to any prescribed conditions.

Citation

14. This Law may be cited as the Sexual Offences (Incitement, Jurisdiction and Protected Material) (Bailiwick of Guernsey) Law, 2009.

SCHEDULE

Section 11(1)

SEXUAL OFFENCES FOR THE PURPOSES

OF THIS LAW

The offences that are "sexual offences" for the purposes of this Law are -

(a) rape,

(b) indecent assault,

(d) an offence under the Law entitled "Loi relative à la Protection des Femmes et des Filles Mineures, 1914"[h],

(e) an offence under Articles 11 and 12 of the Law entitled "Loi ayant rapport à la Protection des Enfants et des Jeunes Personnes, 1917"[i],

(f) an offence under the Law entitled "Loi relative à la Sodomie, 1929"[j],

(g) an offence under the Protection of Children (Bailiwick of Guernsey) Law, 1985[k],

(h) an offence of conspiracy to commit any of the offences in paragraphs (a) to (g),

(i) an offence of attempting to commit any of those offences,

(j) an offence of inciting another to commit any of those offences, and

(k) an offence of aiding, abetting, counselling or procuring any of those offences.

[a]	Article XI of Billet d'État No. VIII of 2006.
[b]	Article I of Billet d'État No. VII of 2009.
[c]	Order in Council No. XII of 2006.
[d]	Ordres en Conseil Vol. XXIX, p. 103; amended by No. I of 2003.
[e]	Ordres en Conseil Vol. XXXI, p. 278.
[f]	Ordres en Conseil Vol. XIII, p. 355.
[g]	Ordres en Conseil Vol. IV, p. 288.
[h]	Ordres en Conseil Vol. V, p. 74.
[i]	Ordres en Conseil Vol. V, p 342.
[j]	Ordres en Conseil Vol. VIII, p. 273.
[k]	Ordres en Conseil Vol. XXIX, p. 103.