Section 88 Exception for certain consensual sexual activities between childrenI1
England and Wales Not yet in force
The duty under section 85 does not apply to a person if the following four conditions are met.
The first condition is that the child sex offence that the person is given reason to suspect may have been committed (“the suspected offence”) is—
an offence under section 13 of the Sexual Offences Act 2003 (child sex offences committed by children or young persons), or
an offence under section 1(1)(a), (b) or (c) of the Protection of Children Act 1978 or section 160 of the Criminal Justice Act 1988, relating to an indecent photograph of a child.
The second condition is that the person reasonably believes that—
each person involved in the suspected offence was a child aged 13 or over, and
The third condition is that the person is satisfied that—
each person involved in the suspected offence (other than the suspected offender) consented to the conduct constituting the suspected offence, and
where the suspected offence is under section 1(1)(b) or (c) of the Protection of Children Act 1978 or section 160 of the Criminal Justice Act 1988, the person shown in the indecent photograph concerned consented to—
the taking of the photograph, and
the conduct constituting the suspected offence.
The fourth condition is that the person is satisfied that it would not be appropriate in the circumstances to make a notification under section 85, having regard (among other things) to the risk of harm to each person mentioned in subsection (3)(a) and (if relevant) (b).
For the purposes of the third condition, a person consents if the person agrees by choice, and has the freedom and capacity to make that choice.
In this section “indecent photograph” has the same meaning as in the Protection of Children Act 1978 (see section 7 of that Act).
Annotations
Commencement
- I1
S. 88 not in force at Royal Assent, see s. 255(1)