Sexual Offences Act 2003 – transitional arrangements

This article seeks to remind investigators and prosecutors of the transitional arrangements which apply to the offence creating provisions contained in Part 1 of the Sexual Offences Act 2003 (‘the Act’).

The effect of those arrangements is that the sexual offences legislation in force prior to its repeal by the Act will continue to be of importance for some years to come, particularly in the context of historic sexual abuse allegations.

The Act repealed all the sexual offences created by the Vagrancy Act 1824, Sexual Offences Acts 1956, Mental Health Act 1959 and the Indecency with Children Act 1960.

It replaced those repealed offences with new offences contained in Part I of the Act.

The offence creating and offence repealing provisions of the Act came into force on May 1, 2004 (Section 141 and Schedule 7 of the Act, and paragraph 2 Sexual Offences Act 2003 (commencement) Order 2004).

Savings

The act is not retrospective in application and contains no transitional provisions.

In these circumstances the general saving provisions contained in the Interpretation Act 1978 (Section 16) are triggered. As applicable to the Act they are as follows;

n In the absence of any contrary intention, the repealing provisions of the act contained in Schedule 7 do not affect;

a) The previous operation of the repealed statutes,

b) Any rights privileges, obligations or liabilities acquired, accrued or incurred under any of the repealed statures prior to their repeal,

c) Or any investigation or prosecution in relation to such a liability.

n Accordingly where the offence was committed prior to May 1, 2004, Section 16 permits the defendant to be arrested, investigated, prosecuted, convicted and sentenced under the repealed provisions, as if those provisions had never been repealed.

Applying the general saving provisions, the position is therefore as follows:

n A sexual offence committed after midnight on April 30, 2004 should be charged under the relevant provision of the Act.

n A sexual offence committed before midnight on April 30, 2004 should continue to be charged under the relevant offence creating provision of the Sexual Offences Act 1956, Mental Health Act 1959 or Indecency with Children Act 1960 as applicable.

Offences of uncertain date/specimen counts

In most prosecutions, application of these saving provisions will be entirely straightforward.

However, in cases where the precise date of the offence is unknown (for whatever reason), but the evidence discloses it must have been committed within a specific time period, which includes May 1, 2004, prosecutors should ensure the period identified in the particulars of the offence does not straddle May 1, 2004.

By way of example, take the case of a defendant who is alleged to have repeatedly raped an adult complainant over a two-year period commencing January 1, 2003.

If the evidence does not enable the prosecutor to particularise the precise dates or number of each offence (for whatever reason) then the proper practice is to charge a sample number of counts (say six) to cover the full two-year period, but in a way that differentiates between the period prior to midnight on April 31, 2004 and the period after that date.

In the particulars, the period covered by each count could therefore be expressed in the following way;

n Count 1 “a day between January 1, 2003 and May 1, 2003”

n Count 2 “a day between April 30, 2003 and September 1, 2003”

n Count 3 “a day between August 31, 2003 and January 1, 2004”

n Count 4 “a day between December 31, 2003 and May 1, 2004”

n Count 5 “a day between April 30, 2004 and September 31, 2004”

n Count 6 “a day between October 1, 2004 and December 31, 2004”

Counts 1 to 4 inclusive would be pleaded as offences contrary to Section 1 Sexual Offences Act 1956 and Counts 5 and 6 pleaded as contrary to Section 1 Sexual Offences Act 2003.

Clearly where the date of each offence is known but the number of offences is too large to be included in the indictment, then any specimen counts sho