2008 No. 1062

Children And Young Persons, England And Wales
Protection Of Vulnerable Adults, England And Wales

The Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Transitional Provisions) Regulations 2008

Made

Coming into force

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 61(5) and 64(1) of, and paragraphs 1(1), 7(1) and 24(1) to (3)1 of Schedule 3 to, the Safeguarding Vulnerable Groups Act 20062:

In accordance with section 56(3)(q) of that Act he has consulted the Welsh Ministers:

A draft of these Regulations was laid before Parliament in accordance with section 61(3) of the Safeguarding Vulnerable Groups Act 2006 and approved by resolution of each House of Parliament.

Citation, commencement and interpretation1

1

These Regulations may be cited as the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Transitional Provisions) Regulations 2008 and come into force on 7th April 2008.

2

In these Regulations—

  • “the Act” means the Safeguarding Vulnerable Groups Act 2006;

  • “connected offence” means, in relation to an offence specified in the Schedule, an offence of—

    1. a

      attempting, conspiring or incitement to commit that offence, or

    2. b

      aiding, abetting, counselling or procuring the commission of that offence;

  • “disqualification order” means an order of the court under section 28, 29 or 29A of the Criminal Justice and Court Services Act 20003;

  • “relevant circumstances” means—

    1. a

      in relation to an offence specified in sub-paragraph (a) or (b) of paragraph 1 of the Schedule, the circumstances described in the relevant sub-paragraph which relate to the commission of that offence, and

    2. b

      in relation to an offence specified in sub-paragraph (c), (e) or (g)(i) of that paragraph, the circumstances referred to in the relevant sub-paragraph in relation to the commission of that offence.

3

In regulation 2, a reference to an offence specified in paragraph 1(a) to (c), (e) or (g)(i) of the Schedule is a reference to that offence only where it was committed in relevant circumstances.

4

In regulations 2 and 3, a reference to an offence specified in the Schedule includes a reference to an offence which is a connected offence in relation to the specified offence.

5

For the purposes of regulations 2 and 3, an offence committed over a period of time must be treated as having been committed on the last day of that period.

Prescribed criteria – children’s barred list2

1

The criteria prescribed for the purposes of paragraph 1 of Schedule 3 to the Act as it has effect for the purposes of article 2(7) of the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 20084 are that the person has been convicted of, or cautioned in relation to, an offence specified in paragraph 1 of the Schedule which that person committed within the period of 10 years ending on the day that the Secretary of State refers the person to IBB under article 2(1)(c) of that Order for inclusion in the children’s barred list.

2

Paragraph 1 does not apply in relation to the commission of an offence specified in paragraph 1 of the Schedule if the court, having considered whether to make a disqualification order in relation to that commission of that offence, decided not to.

Prescribed criteria – adults’ barred list3

The criteria prescribed for the purposes of paragraph 7 of Schedule 3 to the Act as it has effect for the purposes of article 4(7) of the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008 are that the person has been convicted of, or cautioned in relation to, an offence specified in paragraph 2 of the Schedule which that person committed within the period of 10 years ending on the day that the Secretary of State refers the person to IBB under article 4(1)(c) of that Order for inclusion in the adults’ barred list.

Beverley HughesMinisterDepartment for Children, Schools and Families

SCHEDULE

Regulations 2 and 3

1

The offences specified for the purposes of regulation 2 are—

a

the offence of rape contrary to the common law of Scotland, where the offence was committed against a child;

b

the offence of rape contrary to the common law of Northern Ireland, where the offence was committed against a child;

c

any offence contrary to a provision specified in the first column of Part 1 of the table set out in this paragraph, where it was committed in circumstances specified in the corresponding entry in the second column of that Part of that table;

d

any offence contrary to a provision specified in Part 2 of that table;

e

any offence contrary to—

i

section 70 of the Army Act 19555,

ii

section 70 of the Air Force Act 19556, or

iii

section 42 of the Naval Discipline Act 19577,

which corresponds to an offence contrary to any provision specified in the first column of Part 1 of that table and which was committed in circumstances specified in the entry in the second column of that Part of that table that corresponds to the relevant entry in the first column of that Part of that table;

f

any offence contrary to—

i

section 70 of the Army Act 1955,

ii

section 70 of the Air Force Act 1955, or

iii

section 42 of the Naval Discipline Act 1957,

which corresponds to an offence contrary to any provision specified in Part 2 of that table; and

g

any offence contrary to section 42 of the Armed Forces Act 20068 where—

i

the corresponding offence under the law of England and Wales is one contrary to a provision specified in the first column of Part 1 of that table, and the offence under the Armed Forces Act 2006 was committed in circumstances specified in the entry in the second column of that Part of that table that corresponds to the relevant entry in the first column of that Part of that table, or

ii

the corresponding offence under the law of England and Wales is one contrary to a provision specified in Part 2 of that table.

Table

Part 1

Provision

Circumstances

Sexual Offences Act 1956, section 19

The offence was committed against a child

Mental Health Act 1959, section 12810

The offence was committed against a child

Mental Health (Northern Ireland) Order 1986, Article 122(1)(a)11

The offence was committed against a child

Mental Health (Northern Ireland) Order 1986, Article 12312

The offence was committed against a child

Mental Health (Care and Treatment) (Scotland) Act 2003, section 31113

The offence was committed against a child

Mental Health (Care and Treatment) (Scotland) Act 2003, section 31314

The offence was committed against a child

Sexual Offences Act 2003, section 115

The offence was committed against a child

Sexual Offences Act 2003, section 2

The offence was committed against a child

Sexual Offences Act 2003, section 30

The offence was committed against a child

Sexual Offences Act 2003, section 31

The person caused or incited to engage in sexual activity was a child

Sexual Offences Act 2003, section 32

The person who was present or in a place from which the person committing the offence could be observed was a child

Sexual Offences Act 2003, section 33

The person caused to watch the sexual activity in question was a child

Sexual Offences Act 2003, section 34

The offence was committed against a child

Sexual Offences Act 2003, section 35

The person induced, threatened or deceived was a child

Sexual Offences Act 2003, section 36

The person who agreed to be present or in a place from which the person committing the offence could be observed was a child

Sexual Offences Act 2003, section 37

The person induced, threatened or deceived was a child

Sexual Offences Act 2003, section 38

The offence was committed against a child

Sexual Offences Act 2003, section 39

The person caused or incited to engage in sexual activity was a child

Sexual Offences Act 2003, section 40

The person who was present or in a place from which the person committing the offence could be observed was a child

Sexual Offences Act 2003, section 41

The person caused to watch the sexual activity in question was a child

Part 2

Provision

Criminal Law Amendment Act 1885, section 416

Sexual Offences Act 1956, section 517

Criminal Law (Consolidation) (Scotland) Act 1995, section 5(1) or (2)18

Sexual Offences Act 2003, section 5

Sexual Offences Act 2003, section 6

Sexual Offences Act 2003, section 7

Sexual Offences Act 2003, section 8

2

The offences specified for the purposes of regulation 3 are—

a

any offence contrary to a provision specified in the table set out in this paragraph;

b

any offence contrary to—

i

section 70 of the Army Act 1955,

ii

section 70 of the Air Force Act 1955, or

iii

section 42 of the Naval Discipline Act 1957,

which corresponds to an offence contrary to any provision specified in that table; and

c

any offence contrary to section 42 of the Armed Forces Act 2006, where the corresponding offence under the law of England and Wales is one contrary to a provision specified in that table.

Table

Provision

Mental Health (Northern Ireland) Order 1986, Article 122(1)(a)

Mental Health (Northern Ireland) Order 1986, Article 123

Mental Health (Care and Treatment) (Scotland) Act 2003, section 311

Mental Health (Care and Treatment) (Scotland) Act 2003, section 313

Sexual Offences Act 2003, section 30

Sexual Offences Act 2003, section 31

Sexual Offences Act 2003, section 32

Sexual Offences Act 2003, section 33

Sexual Offences Act 2003, section 34

Sexual Offences Act 2003, section 35

Sexual Offences Act 2003, section 36

Sexual Offences Act 2003, section 37

Sexual Offences Act 2003, section 38

Sexual Offences Act 2003, section 39

Sexual Offences Act 2003, section 40

Sexual Offences Act 2003, section 41

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations prescribe the criteria which are to have effect for the purposes of articles 2(7) and 4(7) of the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008, S.I. 2008/473 (“the TPO”). Anyone meeting these criteria will not be given the right to make representations as to their inclusion under the TPO in the barred lists (these are the lists maintained by the Independent Barring Board (“IBB”) under section 2 of the Safeguarding Vulnerable Groups Act 2006 (“the Act”)).

The criteria will apply only in the case of people whom IBB are required to include in those lists under the TPO (see regulations 2 and 3). They will be people who, at the point at which they are referred to IBB by the Secretary of State, are included in the lists maintained under section 1 of the Protection of Children Act 1999 or section 81 of the Care Standards Act 2000, who are subject to a disqualification order under section 28, 29 or 29A of the Criminal Justice and Court Services Act 2000, or who are subject to a direction made under section 142(1) of the Education Act 2002 on the grounds of unsuitability.

The criteria are that a person has been convicted of, or cautioned in relation to, an offence set out in the Schedule to these Regulations, or a connected offence, which that person committed in any applicable circumstances that are prescribed in the Schedule in relation to the commission of that offence (see regulation 1(3)). Where no circumstances are prescribed in relation to the commission of an offence, the criteria are met in any case where a person is convicted of, or cautioned in relation to, the offence in question. A connected offence is an offence of attempting, conspiring, or incitement to commit, or aiding, abetting, counselling, or procuring the commission of, an offence set out in the Schedule (regulation 1(2)).

The offence must have been committed within the period of 10 years ending on the day that the Secretary of State refers the individual to IBB (regulations 2 and 3). The effect of regulation 1(5) is that, where an offence has been committed over a period of time, it will be treated as having been committed on the last day of that period.