Further implications of the Sexual Offences Act

The Police National Legal Database continues to receive enquiries, particularly from trainers, in relation to the Sexual Offences Act 2003. It appears that some police officers do not appreciate that the offences of burglary with intent and indecent exposure have changed as a consequence of the introduction of this legislation, and that new offences now exist. By Ian Grant, Acting Legal Editor, PNLD Legallink

Burglary

If we go back to the early part of the last century the offence of burglary created by the Larceny Act 1916 was very restricted, applying exclusively to dwelling houses and then only where the entry was made between the hours of 9pm and 6am.

Section 9 of the Theft Act 1968 changed the whole character of the burglary offence and so it has remained for more than 35 years. It encompassed “any building” and with no restriction on when the offence could be committed. The section contained two elements, section 9(1)(a) – entering a building with intent to steal, to inflict grievous bodily harm, to rape or to do unlawful damage, and section 9(1)(b) – having entered a building committing theft (or attempted theft), injury or damage. It is the former that presently concerns us. Section 9(1)(a) provided:

“A person is guilty of burglary if he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection 9(2).”

Those offences were:

(a) stealing anything in the building or part of a building in question,

(b) inflicting on any person therein any grievous bodily harm,

(c) raping any person therein,

(d) doing unlawful damage to the building or anything therein.

Now for the bad news – section 140 and schedule 7 within the Sexual Offences Act 2003, which came into force on May 1, 2004, revoked option (c) removing the element of rape from this offence.

Trespass with intent to commit a sexual offence

It’s not all bad news however, as the 2003 Act created a new offence of “trespass with intent to commit a sexual offence”. Section 63 of the Act provides:

63(1) A person commits an offence if –

(a) he is a trespasser on any premises,

(b) he intends to commit a relevant sexual offence on the premises, and

(c) he knows that, or is reckless as to whether, he is a trespasser.

This offence raises a number of interesting points:

(i) The offender no longer has to “enter” as a trespasser. This formula removes some of the difficulties encountered in R v Collins [1972] 2 AllER 1105 as to whether the accused has actually entered the premises. It also means that an accused who entered lawfully a shop or hospital but then trespasses into restricted areas, such as behind the counter or into the nurses’ residences, can be guilty.

(ii) The wording of the offence seems to remove the requirement to prove that the formulation of the intention to commit the sexual offence was made prior to the trespass. It appears the intention may now be formed at any time during the accused’s presence in the building.

(iii) Unlike section 9(1)(a) this offence is not restricted to “a building”. Here, “premises” include a structure or part of a structure and also a tent, vehicle, vessel or other temporary or movable structure.

(iv) The sexual offence contemplated is not confined to rape (as was the 1968 Act offence); the section provides for an intention to commit a “relevant sexual offence”. This includes not only the new rape offence as provided by section 1 of the 2003 Act but ANY of the offences contained in Part 1 of the Act which extends from section 1 to 79. It therefore brings under the umbrella of “trespassing with intent to commit a sexual offence” the vast majority of offences created by this statute. The exceptions being those offences against notification requirements, prevention orders and foreign travel orders.

Trespass with intent to commit a sexual offence carries a penalty on summary conviction of six months imprisonment or a fine not exceeding the statutory maximum or both, and on indictment, 10 years imprisonment which m