The Safeguarding Vulnerable Groups (Northern Ireland) Order 2007

Article 6

SCHEDULE 1N.I.BARRED LISTS

PART I N.I.CHILDREN'S BARRED LIST

Automatic inclusionN.I.

1.—(1) This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person.N.I.

[F1(2) If DBS is satisfied that this paragraph applies to a person, it must include the person in the children’s barred list.]

Inclusion subject to consideration of representationsN.I.

2.—(1) This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person.N.I.

[F2F3[(2) Sub-paragraph (4) applies if it appears to DBS that—

(a)this paragraph applies to a person, and

(b)the person is or has been, or might in future be, engaged in regulated activity relating to children.]

(4) [F4DBS] must give the person the opportunity to make representations as to why the person should not be included in the children's barred list.

(5) Sub-paragraph (6) applies if—

(a)the person does not make representations before the end of any time prescribed for the purpose, or

(b)the duty in sub-paragraph (4) does not apply by virtue of paragraph 16(2).

(6) If [F4DBS] —

(a)is satisfied that this paragraph applies to the person, and

(b)has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children,

it must include the person in the list.

(7) Sub-paragraph (8) applies if the person makes representations before the end of any time prescribed for the purpose.

(8) If [F4DBS] —

(a)is satisfied that this paragraph applies to the person,

(b)has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, and

(c)is satisfied that it is appropriate to include the person in the children's barred list,

it must include the person in the list.]

BehaviourN.I.

3.—(1) This paragraph applies to a person if—N.I.

(a)it appears to [F4DBS] that the person [F5—

(i)has (at any time) engaged in relevant conduct, and

(ii)is or has been, or might in future be, engaged in regulated activity relating to children,], and

(b)[F4DBS] proposes to include him in the children's barred list.

(2) [F4DBS] must give the person the opportunity to make representations as to why he should not be included in the children's barred list.

(3) [F4DBS] must include the person in the children's barred list if—

(a)it is satisfied that the person has engaged in relevant conduct,

[F6(aa)it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children,] and

(b)it [F7is satisfied] that it is appropriate to include the person in the list.

(4) This paragraph does not apply to a person if the relevant conduct consists only of an offence committed against a child before the commencement of Article 6 and the court, having considered whether to make a disqualification order, decided not to.

(5) In sub-paragraph (4)—

(a)the reference to an offence committed against a child must be construed in accordance with Chapter II of Part II of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003;

(b)a disqualification order is an order under Article 23 or 24 of that Order.

4.—(1) For the purposes of paragraph 3 relevant conduct is—N.I.

(a)conduct which endangers a child or is likely to endanger a child;

(b)conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him;

(c)conduct involving sexual material relating to children (including possession of such material);

(d)conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to [F4DBS] that the conduct is inappropriate;

(e)conduct of a sexual nature involving a child, if it appears to [F4DBS] that the conduct is inappropriate.

(2) A person's conduct endangers a child if he—

(a)harms a child,

(b)causes a child to be harmed,

(c)puts a child at risk of harm,

(d)attempts to harm a child, or

(e)incites another to harm a child.

(3) “Sexual material relating to children” means—

(a)indecent images of children, or

(b)material (in whatever form) which portrays children involved in sexual activity and which is produced for the purposes of giving sexual gratification.

(4) “Image” means an image produced by any means, whether of a real or imaginary subject.

(5) A person does not engage in relevant conduct merely by committing an offence prescribed for the purposes of this sub-paragraph.

(6) For the purposes of sub-paragraph (1)(d) and (e), [F4DBS] must have regard to guidance issued by the Secretary of State as to conduct which is inappropriate.

Risk of harmN.I.

5.—(1) This paragraph applies to a person if—N.I.

(a)it appears to [F4DBS] that the person [F8—

(i)falls within sub-paragraph (4), and

(ii)is or has been, or might in future be, engaged in regulated activity relating to children,], and

(b)[F4DBS] proposes to include him in the children's barred list.

(2) [F4DBS] must give the person the opportunity to make representations as to why he should not be included in the children's barred list.

(3) [F4DBS] must include the person in the children's barred list if—

(a)it is satisfied that the person falls within sub-paragraph (4)

[F9(aa)it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children,], and

(b)it [F10is satisfied] that it is appropriate to include the person in the list.

(4) A person falls within this sub-paragraph if he may—

(a)harm a child,

(b)cause a child to be harmed,

(c)put a child at risk of harm,

(d)attempt to harm a child, or

(e)incite another to harm a child.

Restriction on inclusionN.I.

6.—(1) [F11DBS] must not include a person in the children's barred list—

(a)only on a particular ground if a relevant Scottish authority has already considered whether the person should be included in a corresponding list on the same ground (whether or not it decided to include him in the list), or

(b)if, in accordance with such criteria as the Secretary of State specifies by order, it is more appropriate for the person's case to be considered by the relevant Scottish authority.

(2) A relevant Scottish authority is such authority as the Secretary of State specifies by order as exercising for the purposes of the law of Scotland functions which correspond to those of [F11DBS].

(3) A corresponding list is a list maintained for the purposes of the law of Scotland which the Secretary of State specifies by order as corresponding to the children's barred list.

PART II N.I.ADULTS' BARRED LIST

Automatic inclusionN.I.

7.—(1) This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person.N.I.

[F12(2) If DBS is satisfied that this paragraph applies to a person, it must include the person in the adults’ barred list.]

Inclusion subject to consideration of representationsN.I.

8.—(1) This paragraph applies to a person if any of the criteria prescribed for the purposes of this paragraph is satisfied in relation to the person.N.I.

[F13(2) [F14Sub-paragraph (4) applies if it appears to DBS that—

(a)this paragraph applies to a person, and

(b)the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults.]

(4) [F15DBS] must give the person the opportunity to make representations as to why the person should not be included in the adults' barred list.

(5) Sub-paragraph (6) applies if—

(a)the person does not make representations before the end of any time prescribed for the purpose, or

(b)the duty in sub-paragraph (4) does not apply by virtue of paragraph 16(2).

(6) If [F15DBS] —

(a)is satisfied that this paragraph applies to the person, and

(b)has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults,

it must include the person in the list.

(7) Sub-paragraph (8) applies if the person makes representations before the end of any time prescribed for the purpose.

(8) If [F15DBS] —

(a)is satisfied that this paragraph applies to the person,

(b)has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults, and

(c)is satisfied that it is appropriate to include the person in the adults' barred list,

it must include the person in the list.]

BehaviourN.I.

9.—(1) This paragraph applies to a person if—N.I.

(a)it appears to [F15DBS] that the person [F16—

(i)has (at any time) engaged in relevant conduct, and

(ii)is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults,], and

(b)[F15DBS] proposes to include him in the adults' barred list.

(2) [F15DBS] must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.

(3) [F15DBS] must include the person in the adults' barred list if—

(a)it is satisfied that the person has engaged in relevant conduct

[F17(aa)it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults,], and

(b)it [F18is satisfied ] that it is appropriate to include the person in the list.

10.—(1) For the purposes of paragraph 9 relevant conduct is—N.I.

(a)conduct which endangers a vulnerable adult or is likely to endanger a vulnerable adult;

(b)conduct which, if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him;

(c)conduct involving sexual material relating to children (including possession of such material);

(d)conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to [F15DBS] that the conduct is inappropriate;

(e)conduct of a sexual nature involving a vulnerable adult, if it appears to [F15DBS] that the conduct is inappropriate.

(2) A person's conduct endangers a vulnerable adult if he—

(a)harms a vulnerable adult,

(b)causes a vulnerable adult to be harmed,

(c)puts a vulnerable adult at risk of harm,

(d)attempts to harm a vulnerable adult, or

(e)incites another to harm a vulnerable adult.

(3) “Sexual material relating to children” means—

(a)indecent images of children, or

(b)material (in whatever form) which portrays children involved in sexual activity and which is produced for the purposes of giving sexual gratification.

(4) “Image” means an image produced by any means, whether of a real or imaginary subject.

(5) A person does not engage in relevant conduct merely by committing an offence prescribed for the purposes of this sub-paragraph.

(6) For the purposes of sub-paragraph (1)(d) and (e), [F15DBS] must have regard to guidance issued by the Secretary of State as to conduct which is inappropriate.

Risk of harmN.I.

11.—(1) This paragraph applies to a person if—N.I.

(a)it appears to [F15DBS] that the person [F19—

(i)falls within sub-paragraph (4), and

(ii)is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults,], and

(b)[F15DBS] proposes to include him in the adults' barred list.

(2) [F15DBS] must give the person the opportunity to make representations as to why he should not be included in the adults' barred list.

(3) [F15DBS] must include the person in the adults' barred list if—

(a)it is satisfied that the person falls within sub-paragraph (4),

[F20(aa)it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to vulnerable adults,]and

(b)it [F21is satisfied] that it is appropriate to include the person in the list.

(4) A person falls within this sub-paragraph if he may—

(a)harm a vulnerable adult,

(b)cause a vulnerable adult to be harmed,

(c)put a vulnerable adult at risk of harm,

(d)attempt to harm a vulnerable adult, or

(e)incite another to harm a vulnerable adult.

Restriction on inclusionN.I.

12.—(1) [F22DBS] must not include a person in the adults' barred list—

(a)only on a particular ground if a relevant Scottish authority has already considered whether the person should be included in a corresponding list on the same ground (whether or not it decided to include him in the list), or

(b)if, in accordance with such criteria as the Secretary of State specifies by order, it is more appropriate for the person's case to be considered by the relevant Scottish authority.

(2) A relevant Scottish authority is such authority as the Secretary of State specifies by order as exercising for the purposes of the law of Scotland functions which correspond to those of [F22DBS].

(3) A corresponding list is a list maintained for the purposes of the law of Scotland which the Secretary of State specifies by order as corresponding to the adults' barred list.

PART III N.I.SUPPLEMENTARY

ProcedureN.I.

13.—(1) [F23DBS]must ensure that in respect of any information it receives in relation to an individual from whatever source or of whatever nature it considers whether the information is relevant to its consideration as to whether the individual should be included in each barred list.

(2) Sub-paragraph (1) does not, without more, require [F23DBS] to give an individual the opportunity to make representations as to why he should not be included in a barred list.

14.  When an individual is included in a barred list [F23DBS] must take all reasonable steps to notify the individual of that fact.N.I.

15.—(1) The Secretary of State may, by regulations, make provision as to the procedure to be followed for the purposes of any decision [F23DBS] is required or authorised to take under this Schedule.N.I.

(2) Such provision may include provision as to the time within which anything is to be done.

RepresentationsN.I.

16.—(1) A person who is, by virtue of any provision of this Schedule, given an opportunity to make representations must have the opportunity to make representations in relation to all of the information on which [F23DBS] intends to rely in taking a decision under this Schedule.N.I.

(2) Any requirement of this Schedule to give a person an opportunity to make representations does not apply if [F23DBS] does not know and cannot reasonably ascertain the whereabouts of the person.

(3) The opportunity to make representations does not include the opportunity to make representations that findings of fact made by a competent body were wrongly made.

(4) Findings of fact made by a competent body are findings of fact made in proceedings before one of the following bodies or any of its committees—

(a)the General Teaching Council for Northern Ireland

(b)the Council of the Pharmaceutical Society of Northern Ireland;

(c)the General Medical Council;

(d)the General Dental Council;

(e)the General Optical Council;

(f)the General Osteopathic Council;

(g)the General Chiropractic Council;

(h)the Nursing and Midwifery Council;

(i)the Health Professions Council;

(j)the Northern Ireland Social Care Council.

(5) The Secretary of State may by order amend sub-paragraph (4) by inserting a paragraph or amending or omitting a paragraph for the time being contained in the sub-paragraph.

17.—(1) This paragraph applies to a person who is included in a barred list (except a person included in pursuance of paragraph 1 or 7) if, before he was included in the list, [F23DBS] was unable to ascertain his whereabouts.N.I.

(2) This paragraph also applies to such a person if—

(a)he did not, before the end of any time prescribed for the purpose, make representations as to why he should not be included in the list, and

(b)[F23DBS] grants him permission to make such representations out of time.

(3) If a person to whom this paragraph applies makes such representations after the prescribed time—

(a)[F23DBS] must consider the representations, and

(b)if it thinks that it is not appropriate for the person to be included in the list concerned, it must remove him from the list.

(4) For the purposes of this paragraph, it is immaterial that any representations mentioned in sub-paragraph (3) relate to a time after the person was included in the list concerned.

ReviewN.I.

18.—(1) A person who is included in a barred list may apply to [F23DBS] for a review of his inclusion.N.I.

(2) An application for a review may be made only with the permission of [F23DBS].

(3) A person may apply for permission only if—

(a)the application is made after the end of the minimum barred period, and

(b)in the prescribed period ending with the time when he applies for permission, he has made no other such application.

(4) [F23DBS]must not grant permission unless it thinks—

(a)that the person's circumstances have changed since he was included in the list or since he last applied for permission (as the case may be), and

(b)that the change is such that permission should be granted.

(5) On a review of a person's inclusion, if [F23DBS]is satisfied that it is no longer appropriate for him to be included in the list it must remove him from it; otherwise it must dismiss the application.

(6) The minimum barred period is the prescribed period beginning with such of the following as may be prescribed—

(a)the date on which the person was first included in the list;

(b)the date on which any criterion prescribed for the purposes of paragraph 1, 2, 7 or 8 is first satisfied;

(c)where the person is included in the list on the grounds that he has been convicted of an offence in respect of which a sentence of imprisonment or detention was imposed, the date of his release;

(d)the date on which the person made any representations as to why he should not be included in the list.

[F2418A—(1) Sub-paragraph (2) applies if a person's inclusion in a barred list is not subject to—N.I.

(a)a review under paragraph 18, or

(b)an application under that paragraph,

which has not yet been determined.

(2) [F23DBS] may, at any time, review the person's inclusion in the list.

(3) On any such review, [F23DBS] may remove the person from the list if, and only if, it is satisfied that, in the light of—

(a)information which it did not have at the time of the person's inclusion in the list,

(b)any change of circumstances relating to the person concerned, or

(c)any error by [F23DBS] ,

it is not appropriate for the person to be included in the list.]

InformationN.I.

19.—(1) [F23DBS] may require—

(a)any person who holds records of convictions or cautions for the use of police forces generally to provide to it any relevant information relating to a person to whom any of paragraphs 1 to 5 or 7 to 11 applies [F25or appears to apply] ;

(b)any person who holds such records to provide to it prescribed details of relevant matter (within the meaning of section 113A of the Police Act 1997 (c. 50)) relating to a person to whom any of those paragraphs [F26applies or appears to apply] ;

(c)the [F27relevant chief officer] to provide to it any such relevant information;

F28(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) For the purposes of sub-paragraph (1)(a), relevant information relating to a person is information which the person holding the records [F29reasonably believes to] be relevant in relation to the regulated activity concerned.

(3) For the purposes of sub-paragraph (1)(c), relevant information relating to a person is information which the [F30relevant ] chief officer [F29reasonably believes to] be relevant in relation to the regulated activity concerned.

(4) [F23DBS] must pay to the appropriate police authority such fee as the Secretary of State thinks appropriate for information provided to [F23DBS] in accordance with sub-paragraph (1)(c).

(5) For the purpose of deciding under this Schedule whether or not a person is included in a barred list [F23DBS] must not take account of relevant police information if the [F31relevant chief officer ] thinks that it would not be in the interests of the prevention or detection of crime to disclose the information to the person.

(6) In sub-paragraph (5) relevant police information is information F32...obtained by [F23DBS] in pursuance of subparagraph (1)(c) F33....

(7) In this paragraph—

“caution” has the same meaning as in section 126 of the Police Act 1997 (c. 50);

[F34“the relevant chief officer” means any chief officer of a police force who is identified by the Secretary of State for the purposes of this paragraph;]

[F35(7A) Subsections (10) and (11) of section 113B of the Police Act 1997 apply for the purposes of the definition of “the relevant chief officer” as they apply for the purposes of that section.]

(8) If [F23DBS] so requests, the Secretary of State must inform [F23DBS] [F36who is the relevant chief officer] in relation to a person.

20.—(1) The Department of Health, Social Services and Public Safety may provide to [F23DBS] any information relating to a person which is held by that Department in connection with its functions under Part II or III of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003.N.I.

(2) The Department of Education may provide to [F23DBS] any information relating to a person which is held by that Department in connection with its functions under Articles 70(2)(e)(iii) and 88A(2)(b)(iii) of the Education and Libraries (Northern Ireland) Order 1986 (NI 3).

F37(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21.  [F23DBS] must provide the Secretary of State with the prescribed information relating to a person if—

(a)it includes that person in a barred list;

(b)it is considering whether to include him in a barred list;

(c)it thinks that any of the criteria prescribed for the purposes of paragraph 1, 2, 7 or 8 is satisfied in relation to him and that the Secretary of State does not already have the information.

22.  [F38DBS] must inform the Scottish Ministers if a person is included in a barred list.

23.  [F39DBS] may—

(a)at the request of the Secretary of State provide him with such information relating to the exercise of its functions as [F39DBS] thinks may be relevant to the exercise by the Secretary of State of any of his functions;

(b)at the request of a Northern Ireland department provide it with such information relating to the exercise of [F39DBS] 's functions as [F39DBS] thinks may be relevant to the exercise by that Department of any of its functions.

Prescribed criteriaN.I.

24.—(1) The criteria which may be prescribed for the purposes of paragraphs 1, 2, 7 and 8 are—N.I.

(a)that a person has been convicted of, or cautioned in relation to, an offence of a specified description;

(b)that an order of a specified description requiring the person to do or not to do anything has been made against him;

(c)that a person is included in a specified list maintained for the purposes of a country or territory outside the United Kingdom;

(d)that an order or direction of a specified description requiring the person to do or not to do anything has been made against him for the purposes of a country or territory outside the United Kingdom.

(2) The power to specify offences for the purposes of sub-paragraph (1) includes power to specify offences under—

[F40(a)the law of a country or territory outside Northern Ireland;]

(b)section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18);

(c)section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19);

(d)section 42 of the Naval Discipline Act 1957 (c. 53);

(e)section 42 of the Armed Forces Act 2006 (c. 52).

(3) The Secretary of State may specify a list for the purposes of sub-paragraph (1)(c) only if he thinks that inclusion in the list has a corresponding or similar effect to inclusion in a barred list.

(4) For the purposes of determining whether any of the criteria is satisfied in relation to a person, ignore—

(a)any offence committed before he attained the age of 18;

(b)any order or direction made before that time.

(5) The criteria which may be prescribed for the purposes of paragraph 1 or 2 must not consist only of circumstances in which the person has committed an offence against a child before the commencement of Article 6 if the court, having considered whether to make a disqualification order, decided not to.

(6) In sub-paragraph (5)—

(a)the reference to an offence committed against a child must be construed in accordance with Chapter II of Part II of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 (NI 4);

(b)a disqualification order is an order under Article 23 or 24 of that Order.

(7) For the purposes of sub-paragraph (4) an offence committed over a period of time must be treated as committed on the last day of the period.

F41(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F41(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F42(10) For the purposes of sub-paragraph (2)(a) in its application to an offence committed outside the British Islands the Secretary of State must not specify the offence unless—

(a)the conduct which constitutes the offence would, if carried out in Northern Ireland, amount to an offence under the law of Northern Ireland (the equivalent offence), and

(b)the equivalent offence is also specified for the purposes of paragraph 1, 2, 7 or 8 (as the case may be).]

25.—[F43(1)] A court by or before which a person is convicted of an offence of a description specified for the purposes of paragraph 24(1)(a), or which makes an order of a description specified for the purposes of paragraph 24(1)(b), must inform the person at the time he is convicted or the order is made that [F44DBS] will [F45or (as the case may be) “ may ”] include him in the barred list concerned.N.I.

[F46(2) This paragraph does not apply to convictions by or before a court in a country or territory outside Northern Ireland.]