PART 1 Introduction

Citation, commencement and interpretation

1.–(1) These Regulations may be cited as the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 and come into force seven days after the day on which they are made.

(2) In these Regulations–

"the Act" means the Safeguarding Vulnerable Groups Act 2006;

"the 2002 Act" means the Education Act 2002(3);

"the 2003 Regulations" means the Education (Prohibition from Teaching or Working with Children) Regulations 2003(4);

"connected offence" means, in relation to an offence specified in the Schedule, an offence of–

"disqualification order" means an order of the court under section 28, 29 or 29A of the Criminal Justice and Court Services Act 2000(5);

"relevant circumstances" means–

"relevant date" means the date on which these Regulations come into force.

(3) In regulation 3 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 regulation 4 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.

(5) In regulation 6 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.

(6) In regulations 3 to 6–

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

(b) a reference to being convicted of an offence specified in the Schedule includes a reference to being convicted of a relevant foreign offence or an offence which in relation to that relevant foreign offence is a connected offence.

(7) In paragraph (6)(b) a relevant foreign offence is an offence satisfying the criteria specified in paragraph (8).

(8) 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 England and Wales, amount to an equivalent offence which is specified in the Schedule;

(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.

(9) For the purposes of paragraph (8) 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

2.–(1) Where the condition in paragraph (2) is met, the offences referred to in regulations 3 to 6 do not include any offence which a person has committed against a child before the commencement (for all purposes) of section 2 of the Act.

(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 Criminal Justice and Court Services Act 2000(6).

PART 2 Prescribed criteria

Prescribed criteria - automatic inclusion in the children´s barred list

3.–(1) The criteria prescribed for the purposes of paragraph 1(1) of Schedule 3 to the Act 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 2003 Regulations was satisfied in relation to the person, and

(c) regulation 8 of those Regulations applied to the person, and

(d) the Secretary of State had not made a direction under section 142(1)(a) of the 2002 Act in relation to that person.

(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 Schedule 2 to the 2003 Regulations, and

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

(c) regulation 8 of those Regulations applied to the person, and

(d) the Secretary of State had not made a direction under section 142(1)(a) of the 2002 Act in relation to that person.

(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

4.–(1) The criteria prescribed for the purposes of paragraph 2(1) of Schedule 3 to the Act 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 in the 2003 Regulations was not satisfied in relation to the person, and

(c) regulation 8 of those Regulations applied to the person, and

(d) the Secretary of State had not made a direction under section 142(1)(a) of the 2002 Act in relation to that person.

(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 Schedule 2 to the 2003 Regulations, and

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

(c) regulation 8 of those Regulations applied to the person, and

(d) the Secretary of State had not made a direction under section 142(1)(a) of the 2002 Act in relation to that person.

(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(7) or section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005(8).

(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 3 or in this regulation.

Prescribed criteria - automatic inclusion in the adults´ barred list

5. The criterion prescribed for the purposes of paragraph 7(1) of Schedule 3 to the Act 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

6. The criteria prescribed for the purposes of paragraph 8(1) of Schedule 3 to the Act 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;

(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 Education (Provision of Information by Independent Schools) (England) Regulations 2003

7.–(1) In regulation 8 of the Education (Provision of Information by Independent Schools) (England) Regulations 2003(9)–

(a) omit paragraphs (1)(a)(ii) and (2);

(b) in paragraph (1) for "Secretary of State" substitute "Independent Barring Board established under section 1 of the Safeguarding Vulnerable Groups Act 2006(10)".

(2) After regulation 10 of those Regulations, insert–

"Provision of information

10A. The Independent Barring Board established under section 1 of the Safeguarding Vulnerable Groups Act 2006 must, at the request of the Secretary of State, inform the Secretary of State whether the Independent Barring Board has received information from the proprietor of a specified school in relation to a specified person pursuant to regulation 8. ".

(3) In Part 5 of the Schedule to those Regulations, in paragraph 20 for "of the Secretary of State´s functions under section 142 of the 2002 Act" substitute "by the Independent Barring Board established under section 1 of the Safeguarding Vulnerable Groups Act 2006 of its functions under Schedule 3 to that Act".

Amendments to the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008

8.–(1) The Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008(11) is amended as follows.

(2) After article 2(1)(a), insert–

"(aa) who does not meet any of the criteria prescribed for the purposes of paragraph 1 or 2 of Schedule 3 to the Act under the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 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(12),

(ii) section 70 of the Air Force Act 1955(13), or

(iii) section 42 of the Naval Discipline Act 1957(14),

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(15) 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.

2. The offences specified in this paragraph are–

(a) the offences contrary to the common law of England and Wales of–

(i) murder,

(ii) kidnapping,

(iii) infanticide;

(b) the offences contrary to the common law of Scotland of–

(i) murder,

(ii) rape, where the offence was committed against an adult,

(iii) sodomy, unless every person involved in the offence was aged 16 or over and was a willing participant,

(iv) indecent assault, where the offence was committed against a child,

(v) clandestine injury to women, where the offence was committed against a child,

(vi) abduction of a woman or a girl with intent to rape,

(vii) assault with intent to rape or ravish;

(c) an offence contrary to the common law of Scotland involving lewd, indecent or libidinous behaviour or practices, where the offence was committed against or involving a child under the age of 16;

(d) the offence contrary to the common law of Northern Ireland of–

(i) murder,

(ii) rape, where the offence was committed against an adult,

(iii) kidnapping,

(iv) infanticide;

(e) any offence contrary to a provision specified in 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;

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

(g) 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 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;

(h) 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

(i) any offence contrary to section 42 of the Armed Forces Act 2006 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.

3. The offences specified in this paragraph 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.

4. The offences specified in this paragraph are–

(a) the offences contrary to the common law of England and Wales of–

(i) murder,

(ii) kidnapping,

(iii) infanticide;

(b) the offences contrary to the common law of Scotland of–

(i) murder,

(ii) rape, where the offence was committed against a child,

(iii) sodomy, unless every person involved in the offence was aged 16 or over and was a willing participant,

(iv) indecent assault, where the offence was committed against a child,

(v) clandestine injury to women, where the offence was committed against a child,

(vi) abduction of a woman or a girl with intent to rape, where the offence was committed against a child,

(vii) assault with intent to rape or ravish, where the offence was committed against a child;

(c) an offence contrary to the common law of Scotland involving lewd, indecent or libidinous behaviour or practices, where the offence was committed against a child under the age of 16;

(d) the offences contrary to the common law of Northern Ireland of–

(i) murder,

(ii) rape, where the offence was committed against a child,

(iii) kidnapping,

(iv) infanticide;

(e) 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;

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

(g) 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 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;

(h) 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

(i) any offence contrary to section 42 of the Armed Forces Act 2006 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.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations prescribe the criteria which determine whether a person should be included automatically in the children´s barred list or the adults´ barred list maintained by the Independent Barring Board under section 2 of the Safeguarding Vulnerable Groups Act 2006 (c. 47) (the Independent Barring Board is established under section 1 of that Act).

Regulation 3 prescribes the criteria on the basis of which a person will be included automatically in the children´s barred list without having the right to make representations. Regulation 4 prescribes the criteria on the basis of which a person will be included automatically in that list but then allowed to make representations as to why they should be removed from it.

Regulation 3 addresses three categories of person. The first is someone who, before these Regulations came into force, (i) was made subject to a disqualification order (an order of the court under section 28, 29 or 29A of the Criminal Justice and Court Services Act 2000 (c. 43)), (ii) met conditions under the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (S.I. 2003/1184, as amended - "the 2003 Regulations") which meant that, had that order not been imposed, the Secretary of State would still have been bound to make the person subject to a direction under section 142 of the Education Act 2002 (c. 32) ("the 2002 Act") without giving that person the right to make representations on the matter, but (iii) in relation to whom no such direction was made. The second is someone who, before these Regulations came into force, was convicted of or cautioned in relation to an offence meeting conditions under the 2003 Regulations which meant that the Secretary of State would have been bound to make that person subject to a direction under section 142 of the 2002 Act without having the right to make representations on the matter, but in relation to whom no such direction was made. The third is someone who, on or after the coming into force of these Regulations, has been convicted of or cautioned in relation to, an offence specified in paragraph 1 of the Schedule in any relevant circumstances, where these are prescribed, a "connected offence", or a "relevant foreign offence" (these last two terms being defined in regulation 1).

Regulation 4 addresses five categories of person. The first is someone who, before these Regulations came into force, (i) was made subject to a disqualification order, (ii) did not meet conditions under the 2003 Regulations which, but for the imposition of that order, would have led to the imposition of a direction under section 142 of the 2002 Act without giving that person the right to make representations, and (iii) in relation to whom no such direction was made. The second is someone who, before these Regulations came into force, was convicted of or cautioned in relation to an offence meeting conditions under the 2003 Regulations which meant that the Secretary of State would have been bound to make that person subject to a direction under section 142 of the 2002 Act but also to have allowed the person to make representations on the matter, and in relation to whom no such direction was made. The third is someone who, on or after the coming into force of these Regulations, has been made subject to a risk of sexual harm order (within the meaning of section 123 of the Sexual Offences Act 2003 (c. 42) or section 2 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9)). The fourth is someone who, on or after the coming into force of these Regulations, has been convicted of or cautioned in relation to, an offence specified in paragraph 2 of the Schedule in any relevant circumstances, where these are prescribed, a connected offence, or a relevant foreign offence. The fifth is someone who, on or after the coming into force of these Regulations, is made subject to a disqualification order and who does not meet any other criteria prescribed by regulations 3 or 4.

Regulation 5 prescribes the criteria on the basis of which a person will be included in the adults´ barred list without having the right to make representations. Regulation 6 does the same in relation to criteria on the basis of which a person will be included in that list but then have the right to make representations as to why they should be removed from it.

The Schedule to these Regulations sets out the offences under the common law and statute law of England and Wales, Scotland and Northern Ireland which are prescribed for the purposes of these Regulations and, where relevant, the circumstances in which they must have been committed for a particular conviction or caution to meet criteria for automatic inclusion in either the children´s or adults´ barred list.

Regulation 7 amends regulation 8 of the Education (Provision of Information by Independent Schools) (England) Regulations 2003 (S.I. 2003/1934) and inserts a new regulation 10A into those Regulations which imposes a duty on the Independent Barring Board to inform the Secretary of State, on request, whether it has received information from the proprietor of a specified independent school about the dismissal of a specified member of staff, in accordance with the amended regulation 8.

Regulation 8 amends the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008 (S.I. 2008/473) so that anyone who meets criteria prescribed by these Regulations and who is made subject to a disqualification order does not fall to be referred to IBB by the Secretary of State in accordance with article 2 of that Order.