The Safeguarding Vulnerable Groups (Prescribed Criteria and Miscellaneous Provisions) Regulations (Northern Ireland) 2009

Made: 6th February 2009

To be laid before Parliament

Coming into operation: 13th March 2009

The Secretary of State makes the following Regulations in exercise of the powers conferred by Article 61(1) and (3) of, and paragraphs 1(1), 2(1), 7(1), 8(1) and 24(1) and (2)[^f00001] of Schedule 1 to, the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007[^f00002].

PART 1 — Introduction

Citation and Commencement

1

These Regulations may be cited as the Safeguarding Vulnerable Groups (Prescribed Criteria and Miscellaneous Provisions) Regulations (Northern Ireland) 2009 and shall come into operation on 13th March 2009.

Interpretation

2

• (1) In these Regulations—

• “the Order” means the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007;

• “the 2007 Regulations” means the Education (Prohibition from Teaching or Working with Children) Regulations (Northern Ireland) 2007[^f00003];

• “connected offence” means, in relation to an offence specified in the Schedule, an offence of—attempting, conspiring or incitement to commit that offence, oraiding, abetting, counselling or procuring, the commission of that offence;

• “disqualification order” means an order of the court under Article 23 or 24 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003[^f00004];

• “relevant circumstances” means—in relation to an offence specified in—sub-paragraph (a) or (b) of paragraph 1,sub-paragraph (b)(ii) to (v), (c) or (d)(ii) of paragraph 2, orsub-paragraph (b)(ii) to (vii), (c) or (d)(ii) of paragraph 4of the Schedule the circumstances described in the relevant sub-paragraph which relate to the commission of that offence, andin relation to an offence specified in—sub-paragraph (c), (e) or (g)(i) of paragraph 1,sub-paragraph (e), (g) or (i)(i) of paragraph 2, orsub-paragraph (e), (g) or (i)(i) of paragraph 4of the Schedule the circumstances referred to in the relevant sub-paragraph in relation to the commission of that offence;

• “relevant date” means the date on which these Regulations come into operation;

• “relevant period” means the period starting on the day on which these Regulations come into operation and ending on the day on which Article 7 of the Order comes into operation for all purposes.

• (2) In regulation 5 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.

• (3) In regulation 6 a reference to an offence specified in paragraph 2(b)(ii) to (v), (c), (d)(ii), (e), (g) or (i)(i) of the Schedule is a reference to that offence only where it was committed in relevant circumstances.

• (4) In regulation 8 a reference to an offence specified in paragraph 4(b)(ii) to (vii), (c), (d)(ii), (e), (g) or (i)(i) of the Schedule is a reference to that offence only where it was committed in relevant circumstances.

• (5) In regulations 5 to 8—

• (a) a reference to an offence, A, specified in the Schedule includes a reference to offence, B, which in relation to offence A is a connected offence; and

• (b) a reference to being convicted of an offence specified in the Schedule includes a reference to being convicted of—

• (i) an Islands offence; or

• (ii) a relevant foreign offence.

• (6) In paragraph (5)(b), an Islands offence is an offence satisfying the criteria in paragraph (6A) and a relevant foreign offence is an offence satisfying the criteria in paragraph (7).

• (6A) The criteria are that—

• (a) the offence is one under the law in force in the Isle of Man or any of the Channel Islands;

• (b) the conduct which constitutes the offence would, if carried out in Northern Ireland, amount to an equivalent offence which is specified in the Schedule; and

• (c) where the equivalent offence is one specified in paragraph 1(a) to (c), (e) or (g)(i), 2(b)(ii) to (v), (c), (d)(ii), (e), (g) or (i)(i) or 4(b) (ii) to (vii), (c), (d)(ii), (e), (g) or (i)(i) of the Schedule, the offence was committed in relevant circumstances relating to the equivalent offence.

• (7) The criteria are that—

• (a) the offence is one under the law in force in a country or territory outside the British Islands;

• (b) the conduct which constitutes the offence would, if carried out in Northern Ireland, amount to an equivalent offence which is specified in the Schedule; and

• (c) where the equivalent offence is one specified in paragraph 1(a) to (c), (e) or (g)(i), 2(b)(ii) to (v), (c), (d)(ii), (e), (g) or (i)(i) or 4(b)(ii) to (vii), (c), (d)(ii), (e), (g) or (i)(i) of the Schedule, the offence was committed in relevant circumstances relating to the equivalent offence.

• (7A) For the purposes of paragraph (6A), an act punishable under the law in force in the Isle of Man or any of the Channel Islands constitutes an offence under that law however it is described in that law.

• (8) For the purposes of paragraph (7) an act punishable under the law in force in a country or territory outside the British Islands constitutes an offence under that law however it is described in that law.

Effect of decision not to impose a disqualification order

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• (1) Where the condition in paragraph (2) is met, the offences referred to in regulations 5 to 8 do not include any offence which a person has committed against a child before the commencement (for all purposes) of Article 6 of the Order.

• (2) The condition is that the court, having considered whether to make a disqualification order in connection with the commission of the offence, decided not to.

• (3) In this regulation the reference to an offence committed against a child must be construed in accordance with Part 2 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003.

PART 2 — Prescribed criteria

4

• (1) During the relevant period, the criteria prescribed in this Part are not satisfied in so far as they relate to—

• (a) an offence specified in the Schedule to the 2007 Regulations under the law of England and Wales, Scotland or the law extending to the United Kingdom as a whole or any part or parts thereof;

• (b) an offence specified in the Schedule to these Regulations under the law of England and Wales, Scotland or the law extending to the United Kingdom as a whole or any part or parts thereof; or

• (c) a connected offence in relation to an offence mentioned in sub-paragraph (a) or (b),

unless that offence or connected offence was committed in Northern Ireland.

• (2) During the relevant period, the criteria prescribed in this Part are not satisfied in so far as they relate to—

• (a) a relevant foreign offence; or

• (b) an offence which in relation to that relevant foreign offence is a connected offence,

unless the equivalent offence specified in the Schedule is an offence under the law of Northern Ireland.

Prescribed criteria – automatic inclusion in the children’s barred list

5

• (1) The criteria prescribed for the purposes of paragraph 1(1) of Schedule 1 to the Order are the criteria set out in paragraphs (2) to (4).

• (2) The criterion set out in this paragraph is that before the relevant date—

• (a) the person had been made subject to a disqualification order, and

• (b) condition C in the 2007 Regulations was satisfied in relation to the person, and

• (c) regulation 6 of those Regulations applied to the person, and

• (d) the Department of Education had not included that person in the list kept under regulation 8 of those Regulations.

• (3) The criterion set out in this paragraph is that before the relevant date—

• (a) the person had been convicted of, or cautioned in relation to, an offence specified in Part 2 of the Schedule to the 2007 Regulations, and

• (b) condition C in those Regulations was satisfied in relation to the person, and

• (c) regulation 6 of those Regulations applied to the person, and

• (d) the Department of Education had not included that person in the list kept under regulation 8 of those Regulations.

• (4) The criterion set out in this paragraph is that the person has, on or after the relevant date, been convicted of, or cautioned in relation to, an offence specified in paragraph 1 of the Schedule.

Prescribed criteria – automatic inclusion in the children’s barred list with the right to make representations

6

• (1) The criteria prescribed for the purposes of paragraph 2(1) of Schedule 1 to the Order are the criteria set out in paragraphs (2) to (6).

• (2) The criterion set out in this paragraph is that before the relevant date—

• (a) the person had been made subject to a disqualification order, and

• (b) condition C of the 2007 Regulations was not satisfied in relation to the person, and

• (c) regulation 6 of those Regulations applied to the person, and

• (d) the Department of Education had not included that person in the list kept under regulation 8 of the 2007 Regulations.

• (3) The criterion set out in this paragraph is that before the relevant date—

• (a) the person had been convicted of, or cautioned in relation to, an offence specified in Parts 2 to 5 of the Schedule to the 2007 Regulations, and

• (b) any of conditions D to F in those Regulations was satisfied in relation to the person, and

• (c) regulation 6 of those Regulations applied to the person, and

• (d) the Department of Education had not included that person in the list kept under regulation 8 of those Regulations.

• (4) The criterion set out in this paragraph is that the person has, on or after the relevant date been made subject to a risk of sexual harm order within the meaning of section 123 of the Sexual Offences Act 2003[^f00005] or section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005[^f00006].

• (5) The criterion set out in this paragraph is that the person has, on or after the relevant date, been convicted of, or cautioned in relation to, an offence specified in paragraph 2 of the Schedule.

• (6) The criterion set out in this paragraph is that the person has, on or after the relevant date, been made subject to a disqualification order and the person does not meet any other criteria prescribed in regulation 5 or in this regulation.

Prescribed criteria – automatic inclusion in the adults’ barred list

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The criterion prescribed for the purposes of paragraph 7(1) of Schedule 1 to the Order is that the person has, on or after the relevant date, been convicted of, or cautioned in relation to, an offence specified in paragraph 3 of the Schedule.

Prescribed criteria – automatic inclusion in the adults’ barred list with the right to make representations

8

The criteria prescribed for the purposes of paragraph 8(1) of Schedule 1 to the Order are—

• (a) that the person has, on or after the relevant date, been made subject to a risk of sexual harm order within the meaning of section 123 of the Sexual Offences Act 2003 or section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005; or

• (b) that the person has, on or after the relevant date, been convicted of, or cautioned in relation to, an offence specified in paragraph 4 of the Schedule.

PART 3 — Miscellaneous Provisions

Amendments to the Safeguarding Vulnerable Groups (Transitional Provisions) Order (Northern Ireland) 2008

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• (1) The Safeguarding Vulnerable Groups (Transitional Provisions) Order (Northern Ireland) 2008[^f00007] is amended as follows.

• (2) After Article 3(1)(a), insert—

(aa) who does not meet any of the criteria prescribed for the purposes of paragraph 1 or 2 of Schedule 1 to the Order under the Safeguarding Vulnerable Groups (Prescribed Criteria and Miscellaneous Provisions) Regulations (Northern Ireland) 2009;

SCHEDULE

1

The offences specified in this paragraph 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 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;

• (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 1955[^f00008],

• (ii) section 70 of the Air Force Act 1955[^f00009], or

• (iii) section 42 of the Naval Discipline Act 1957[^f00010],

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 2006[^f00011] 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.