The Police Act 1997 (Criminal Records) (Guernsey) Order 2009

EXPLANATORY NOTE

(This note is not part of the Order)

This Order extends Part 5 of the Police Act 1997 (c. 50) (“Part 5”) to Guernsey, as amended by the Greater London Authority Act 1999 (c. 29), the Police (Northern Ireland) Act 2000 (c. 32), the Criminal Justice and Police Act 2001 (c. 16), the Criminal Justice Act 2003 (c. 44) and the Serious Organised Crime and Police Act 2005 (c. 15), subject to the modifications specified in Schedules 1 and 3. It also extends to Guernsey provisions of the Armed Forces Act 2006 (c. 52) and the Safeguarding Vulnerable Groups Act 2006 (c. 47) that contain amendments to Part 5, subject to the modifications specified in Schedules 2 and 3.

Part 5 makes provision for the Secretary of State to issue three levels of certificate – a criminal conviction certificate (section 112), a criminal record certificate (section 113A) and an enhanced criminal record certificate (section 113B). The Secretary of State’s functions under Part 5 in England and Wales are exercised by the Criminal Records Bureau (“CRB”), an executive agency of the Home Office.

The Order will enable individuals in Guernsey to apply to the CRB for the three levels of certificate. It also provides for the Home Department of the States of Guernsey to register with the Secretary of State as a “registered person” for the purpose of countersigning or transmitting applications for criminal record certificates and enhanced criminal record certificates. This means that individuals in Guernsey will be able to apply for these certificates through the Home Department of the States of Guernsey instead of through a registered body in England and Wales.

The basic level of criminal conviction certificate is not yet available in England and Wales. This is reflected in article 1(3) of the Order which provides that the extension of section 112 and the modifications to that section specified in Schedule 1 come into force in Guernsey on the day on which section 112 comes into force in England and Wales.

Section 113E, which is extended to Guernsey in this Order subject to the modifications specified in paragraph 4 of Schedule 1, makes provision for urgent preliminary information as to whether a person is included in a specified adults’ list to be provided in prescribed cases. This section was repealed in the Safeguarding Vulnerable Groups Act 2006 but the repeal is not yet in force in England and Wales. The repeal is extended to Guernsey in this Order but article 1(4) provides that the repeal will not come into force in Guernsey until the end of the second transitional period. This ensures that applicants in Guernsey will continue to have access to the facility provided by section 113E while it is still available in England and Wales.

The Safeguarding Vulnerable Groups Act 2006 made a number of other amendments to Part 5, which are extended to Guernsey by this Order. In particular, it introduced new sections 113BA and 113BB into Part 5 which require suitability information to be included on enhanced criminal record certificates in prescribed cases. Suitability information is, in essence, information as to whether a person is barred from working with children (section 113BA) or with vulnerable adults (section 113BB). Paragraph 2(b)(ii) of Schedule 2 to this Order modifies the meaning of suitability information relating to children in section 113BA to include whether the person is subject to a prohibition on participation in management of independent educational institutions; this reflects amendments made to Part 5 in England and Wales by the Education and Inspections Act 2006 (c. 40) and Education and Skills Act 2008 (c. 25), although these are not yet in force. Article 1(5) of this Order provides for the modification to come into force on the same day as the equivalent amendments come into force in England and Wales.

The modifications specified in Schedule 3 have effect for a limited period. They reflect provisions in respect of England and Wales set out in the Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No.5) Order 2009 (S.I. 2009/2610). They are necessary because of the phased implementation of the Vetting and Barring Scheme (VBS) in England and Wales, which will supply suitability information for inclusion on enhanced criminal record certificates. The approach in Schedule 3 ensures that the same suitability information will be made available in response to applications from individuals in Guernsey as in England and Wales without the need for amendments to be made to this Order at each stage of the phased implementation of the VBS.

An informal Keeling schedule setting out the provisions of Part 5 as they extend to Guernsey is published on the Ministry of Justice website to assist the reader: www.justice.gov.uk.