Sexual Offences Act comes into full effect

The Sexual Offences Act 2003 received royal assent last
November, but only on 1 May 2004 will the statute come into full
effect, in England, Wales and Northern Ireland.

At section 15, there is the ‘grooming’ offence,
relating to children under 16.  This arises where the offender,
with the intention of committing an offence under this Part of the
2003 Act, meets or travels to meet the child, following at least
two previous communications or meetings.

As with other parts of the Act, the wording here is probably
intentionally broad.  At section 78, we have a definition of
‘sexual’ under the act.  It means any penetration,
touching or other activity “if a reasonable person would
consider that- (a) whatever its circumstances or any person’s
purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its
circumstances or the purpose of any person in relation to it (or
both) it is sexual.”

The ‘reasonable person’ looms large in the arena of
sexualised offences.  It is perhaps regrettable that the act does
not take the opportunity to clear up what is meant by
“indecent” in the realm of indecent images of children
(as in section 1 of the Protection of Children Act 1978 and section
160 of the Criminal Justice Act 1988, for instance).   The test, it
seems, is still that set in 1972 (R v Stamford), being “the
recognised standards of propriety”.  The difficulty is that
what many ‘ordinary people’ may regard as innocent and
cute photographs of their children and grandchildren tend to be
viewed with more scepticism by ‘ordinary professionals’
working in the field of child protection.

Sections 38 to 42 of the 2003 act also introduce specific sexual
offences by a care worker with or in the presence of someone with a
‘mental disorder’.  Under the Mental Health Act 1983,
this could include someone with a learning difficulty. Whilst the
relevant sections will hopefully help protect vulnerable service
users, once again the breadth of the drafting could cause
problems. 

Alison Castrey
Solicitor (Residential Care, Education & Nursing
Services)