FANDOM



The Criminal Law (Consolidation) (Scotland) Act 1995 (c.39) is an Act of the Parliament of the United Kingdom passed to consolidate certain enactments creating offences and relating to the criminal law of Scotland.

ContentsEdit

[hide]*1 Part I - Sexual Offences

[edit]

Edit

Part I - Sexual Offences

[edit]

Edit

Incest and related offences

  • Section 1 consolidates the offence of incest. It applies when a male and a female related in certain ways have sexual intercourse. It applies only to close relatives (father, son, grandfather, grandson, great grandfather, great grandson, brother, uncle, nephew, and female equivalents) and to current or former adoptive fathers, mothers, sons and daughters, and applies to both full blood and half blood relationships. There are defences where the accused proves that he did not know that the relationship existed, where the accused did not consent and where the parties were married outside Scotland. This section consolidates section 2A of the Sexual Offences (Scotland) Act 1976, as inserted by the Incest and Related Offences (Scotland) Act 1986.
  • Section 2 deals with sexual intercourse between step-parents and stepchildren. It provides that any stepparent or former stepparent who has sexual intercourse with his or her stepchild or former stepchild shall be guilty of an offence if that stepchild is either under the age of 21 years or has at any time before attaining the age of 18 years lived in the same household and been treated as a child of his or her family. The same defences apply as for section 1, together with a further defence of reasonable belief that the person had attained the age of 21. This section consolidates section 2B of the Sexual Offences (Scotland) Act 1976, as inserted by the Incest and Related Offences (Scotland) Act 1986.
  • Section 3 makes it an offence for a person over the age of 16 to have sexual intercourse with a child under 16 where that person is a member of the same household as the child and is in a position of trust and authority in relation to that child. There are defences where the accused reasonably believed that the child had attained the age of 16, where the accused did not consent and where the parties were married outside Scotland. This section consolidates section 2C of the Sexual Offences (Scotland) Act 1976, as inserted by the Incest and Related Offences (Scotland) Act 1986. This section is scheduled to be repealed by the Sexual Offences (Scotland) Bill, introduced to the Scottish Parliament in June 2008.
  • Section 4 deals with procedural matters and the penalties for offences under sections 1 to 3. The maximum penalty on indictment for any of the offences is life imprisonment, and 12 months on summary conviction. This section consolidates section 2D of the Sexual Offences (Scotland) Act 1976, as inserted by the Incest and Related Offences (Scotland) Act 1986.

[edit]

Edit

Offences against children

  • Section 5 makes it an offence for any person to have unlawful sexual intercourse with any girl under the age of 13 years (maximum penalty life imprisonment). Any attempt is also an offence, with a maximum penalty on indictment of 10 years imprisonment, or 12 months on summary conviction.

Section 5 also provides that any person who has, or attempts to have, unlawful sexual intercourse with any girl of or over the age of 13 years and under the age of 16 years commits an offence. The maximum penalty on indictment is 10 years imprisonment, or 12 months on summary conviction. It is a defence to this offence that the accused had reasonable cause to believe that the girl was his wife; or being a man under the age of 24 years who had not previously been charged with a like offence, had reasonable cause to believe that the girl was of or over the age of 16 years.

  • Section 6 provides that any person who uses towards a girl of or over the age of 12 years and under the age of 16 years any lewd, indecent or libidinous practice or behaviour which, if used towards a girl under the age of 12 years, would have constituted an offence at common law shall, whether the girl consented to such practice or behaviour or not, be guilty of an offence. the maximum penalty on indictment is 10 years imprisonment, or 12 months on summary conviction.

Sections 5 and 6 are scheduled to be repealed by the Sexual Offences (Scotland) Act 2009.

[edit]

Edit

Procuring, prostitution, etc.

  • Section 7 creates a number of offences relating to procuring young women or girls to have unlawful sexual intercourse or to become prostitutes or to become an inmate of or frequent brothels. It also criminalises the use of threats and intimidation, false pretences or drugs to procure a female (of any age) to have unlawful sexual intercourse. It also criminalises inducing a woman to have sex by pretending to be her husband. The Sexual Offences (Scotland) Act 2009 will repeal and replace the second and third sets of offences under this section.
  • Section 8 makes it illegal to detain a female against her will in a brothel, or in other premises for the purposes of unlawful sexual intercourse with men. The withholding of clothing is treated as a form of detention.
  • Section 9 makes it an offence for the owner,occupier or manager of premises to induce or knowingly suffer a girl under 16 to use premises for unlawful sexual intercourse. It is a defence to this offence that the accused, being a man under the age of 24 years who had not previously been charged with a like offence, had reasonable cause to believe that the girl was of or over the age of 16 years. The Sexual Offences (Scotland) Act 2009 will amend the defence in section 9 so that it applies to any person, and not just to a man under the age of 24.
  • Section 10 makes it an offence for a person with parental responsibilities in relation to a girl under 16 to cause or encourage the seduction or prostitution, unlawful sexual intercourse or the commission of an indecent assault on her.
  • Section 11 (Trading in prostitution and brothel keeping) makes it an offence for a male to knowingly live, wholly or partly on the earnings of prostitution. It is also an offence for a female, for the purpose of gain, to exercise control, direction or influence over the movements of a prostitute in such a manner as to show that she is aiding, abetting or compelling her prostitution with any other person, or generally.The maximum penalty on indictment for these offences is 2 years imprisonment, or 12 months on summary conviction.

Section 11 also makes it an offence for a person to keep, manage, or act or assist in the management of a brothel; for a tenant, lessee etc. to knowingly permit premises to be used as a brothel or for habitual prostitution; or for the lessor or landlord (or agent), knowing that premises are used as a brothel, to permit their continued use. The maximum penalty for these offences is, in the sheriff court, 6 months imprisonment and/or a level 4 fine, or in the district court, 3 months imprisonment and/or a level 3 fine.

  • Section 12 (Allowing child to be in brothel) makes it an offence for any person having parental responsibilities (as defined in the Children (Scotland) Act 1995) to allow a child between the ages of 4 and 16 to reside in or frequent a brothel. The maximum penalty, on indictment or summary conviction, is a level 2 fine (with provision for 6 months imprisonment on default). Special provision is made allowing a person prosecuted on indictment under section 9 to be found guilty of an offence under this section.

Section 13 ensures that premises are treated for the purposes of sections 11 and 12 of this Act as a brothel whether they are used for homosexual or heterosexual activities.

[edit]

Edit

Homosexual offences

  • Section 13 (homosexual offences) provides that a homosexual act (defined as sodomy or an act of gross indecency or shameless indecency by one male person with another male person) in private is not an offence provided that the parties consent and have attained the age of 16. This is subject to certain limitations, set out in the section. Acts in public lavatories are not to be treated as taking place in private. It is an offence to commit or be party to the commission of, or to procure or attempt to procure a homosexual act a) other than in private; b) without the consent of the parties to the act; and c) with a person under the age of 16. It is a defence to a charge under c) that the person so charged being under the age of 24 years who had not previously been charged with a like offence, had reasonable cause to believe that the other person was of or over the age of sixteen years. A boy under 16 does not commit an offence if the other party is over 16. It is an offence to procure or attempt to procure the commission of a homosexual act between two other male persons. The maximum penalty for these offences on indictment is 2 years imprisonment and/or an unlimited fine, and on summary conviction 12 months imprisonment and a fine not exceeding the prescribed sum.

Section 13 also makes it an offence for a person to live wholly or in part on the earnings of another from male prostitution or to solicit or importune any male person for the purpose of procuring the commission of a homosexual act. The maximum penalty for these offences on indictment is 2 years imprisonment, and on summary conviction 12 months imprisonment.

This section is scheduled to be largely repealed by the Sexual Offences (Scotland) Act 2009, leaving only the definition of homosexual act, the offences of living off the earnings of male prostitution and soliciting/importuning any male person for the purpose of procuring the commission of a homosexual act, and the provision treating premises as a brothel for the purposes of sections 11 and 12 (described above).

[edit]

Edit

Miscellaneous

Sections 14 to 18 contain miscellaneous provisions relating to sexual offences.

  • Section 14 (Power, on indictment for rape, etc., to convict of other offences.) provides that when is tried on indictment for [rape] or an offence under section 5(1) (unlawful sexual intercourse with girl under 13) and the jury are not satisfied that the accused is guilty of that offence (or an attempt), the accused may instead be convicted of an offence under -
    • section 5(2) - attempt to have unlawful sexual intercourse with girl under 13
    • section 5(3) - unlawful sexual intercourse (or attempt) with girl of or over 13 and under 16
    • section 7(2) - threats, intimidation, false pretences &c, or administration of drugs to procure unlawful sexual intercourse
    • section 7(3) - impersonation of husband
    • or of the common law offence of indecent assault.

This section is scheduled to be repealed by the Sexual Offences (Scotland) Act 2009.

  • Section 15 (defence to charge of indecent assault), which formerly provided that it was a defence to a charge of indecent assault committed against a girl under the age of 16 years that the person so charged has reasonable cause to believe that the girl was his wife, was repealed by the Criminal Justice (Scotland) Act 2003
  • Section 16 (power of search) provides a power to obtain a search warrant where there is reasonable cause to suspect that a woman or girl is unlawfully detained for immoral purposes.
  • Section 16A (Conspiracy or incitement to commit certain sexual acts outside the United Kingdom) makes it an offence for a person in Scotland to incite the commission of certain sexual offences outside the UK. The section was inserted by the Sexual Offences (Conspiracy and Incitement) Act 1996. The section formerly dealt with conspiracy as well as incitement, but this was removed by the [1]