Preparatory Offences

Question 1

What is the offence of administering a substance with intent?

Answer 1

Sexual Offences Act 2003, s61
(1) A person commits an offence if he intentionally administers a substance to, or causes a substance to be taken by, another person (B)—
(a) knowing that B does not consent, and
(b) with the intention of stupefying or overpowering B, so as to enable any person to engage in a sexual activity that involves B

Question 2

What is the sentence?

Answer 2

Triable either way offence
10 years’ imprisonment on indictment

Question 3

What offence is s61 aimed at preventing?

Answer 3

Aimed at the use of ‘date rape’ drugs administered without victim’s knowledge or consent- also covers the use of any other substance with the relevant intention.

Question 4

What substances does the offence cover?

Answer 4

Covers any substance which is meant to overpower the victim- not just drugs!!
It would cover A spiking B’s soft drink with alcohol where B did not know he/she was consuming alcohol, but it would not cover A encouraging B to get drunk so that A could have sex with B, where B knew he/she was consuming alcohol.
It would also cover chloroform.

Question 5

Who has to administer the substance to the victim?

Answer 5

This offence applies both when A him/herself administers the substance to B, and where A causes the substance to be taken by B, for example when A persuades a friend (C) to administer a substance to B, so that A can have sex with B, because C knows B socially and can more easily slip the substance into B’s drink than A

Question 6

Would the offence extend to encouragement?

Answer 6

No- it will not cover A encouraging B to get drunk so that A can more readily persuade B to have sex.
Where B is aware he is drinking alcohol, B will have consented to take the substance.

Question 7

What sexual activity does it include?

Answer 7

It would cover A spiking B’s soft drink with alcohol where B did not know he/she was consuming alcohol, but it would not cover A encouraging B to get drunk so that A could have sex with B, where B knew he/she was consuming alcohol
having sexual intercourse with or masturbating B, could involve A causing B to commit a sexual act upon him/herself (e.g. masturbation) or could involve B and a third party engaging in sexual activity together, regardless of whether the third party has administered the substance. This is an offence of intent rather than consequence so there is no need for the victim to be stupefied or overpowered or for the sexual activity to take place, for example because a friend of B saw what was happening and intervened to protect B

Question 8

Does the sexual activity have to be with the person who administers the substance?

Answer 8

No- it can be with anyone.

Question 9

Does the substance need to have any effect on B?

Answer 9

No- A just needs to administer the substance or cause it to be administered with the necessary knowledge and intent

Question 10

What is the offence of committing a criminal offence with intent to commit a sexual offence? Sentence?

Answer 10

Committing Criminal Offence with Intent to Commit a Sexual Offence—Sexual Offences Act 2003, s62
(1) A person commits an offence under this section if he commits any offence with the intention of committing a relevant sexual offence

Question 11

What are the sentences for the offence?

Answer 11

Where the offence committed is kidnapping or false imprisonment—triable on indictment only: life imprisonment
Triable either way: 10 years’ imprisonment on indictment

Question 12

What does ‘relevant sexual offence’ mean?

Answer 12

An offence under part 1 of the Act (virtually all regularly occurring sexual offences) including aiding, abetting, counselling or procuring such an offence (s. 62(2)). It does not extend to other sexual offences under the Protection of Children Act 1978)

Question 13

What is the offence designed to deal with?

Answer 13

Designed to deal with the commission of any criminal offence where D’s intention is to commit a relevant sexual offence.
This would cover an array of possible circumstances where the D’s ulterior motive in committing the first offence is to carry out the relevant sexual offence

Question 14

What are the points to prove for this offence?

Answer 14

You are looking for an offence (ANY offence) being committed with an ulterior intention to commit a sexual offence.

Question 15

Examples of this offence

Answer 15

It would apply, for example, where A kidnaps B so that A can rape B but is caught by the police before committing the rape. It would also apply where A detained B in his/her flat with this intention, or assaulted B to subdue him/her so that A could more easily rape B.

Question 16

Does the preparatory offence need to be directed at B?

Answer 16

There is no requirement that the preparatory offence is directed at B (the ultimate intended victim of the sexual activity)
eg: A could assault X to frighten B into submission

Question 17

Does there need to be an immediate time link between the two offences?

Answer 17

There is no express requirement for there to be any immediate link in time between the two offences. It could cover any situation from the theft of drugs or equipment to be used in the course of the sexual offence and going equipped for burglary, to the taking of a vehicle or even dangerous driving with the intention in each case of committing the further relevant sexual offence.
If A does commit the intended offence, he/she could be charged with the substantive sexual offence in addition to this offence

Question 18

What is trespass with intent to commit a relevant sexual offence?

Answer 18

Trespass with Intent to Commit a Relevant Sexual Offence—Sexual Offences Act 2003, s. 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.

Question 19

What is the sentence?

Answer 19

Triable either way- 10 years’ imprisonment on indictment

Question 20

When is D classed as a trespasser?

Answer 20

A person is a trespasser if they are on the premises without the owner’s or occupier’s consent, whether express or implied, or they are there without a power at law to be there. Generally, defendants ought to know whether they are trespassing or not and recklessness will be enough in that regard
Eg: situation where A enters a building owned by B, or goes into B’s garden or garage without B’s consent, and A intends to commit a relevant sexual offence against the occupier or other person on the premises

Question 21

Does the substantive sexual offence have to be committed or just intended?

Answer 21

The offence applies regardless of whether or not the substantive sexual offence is committed.
A will commit the offence if he/she has the intent to commit a relevant sexual offence at any time while he/she is a trespasser. The intent is likely to be inferred from what the defendant says or does to the intended victim (if there is one) or from items in the possession of the defendant at the time he/she commits the trespass (e.g. condoms, pornographic images, rope etc.)
The defendant must intend to commit the relevant offence on the premises

Question 22

Does it matter if the ulterior sexual offence is committed?

Answer 22

No- this is an offence of intent. it is the fact that he is a trespasser and intends to commit a sexual offence which is important.

Question 23

How is this offence wider than rape?

Answer 23

Relevant sexual offence covers ALL of the main sex offences under the 2003 Act so is wider than rape.

Question 24

Where must D intend to commit the relevant offence?

Answer 24

He must intend to commit the sexual offence on the premises- if he kidnaps a person and intends to commit the offence elsewhere then it is the offence under s62