Barring

1 Independent Barring Board

(1) There shall be a body corporate to be known as the Independent Barring Board (“IBB”).

(2) Schedule 1 makes provision relating to IBB.

(3) Schedule 2 (transfers to IBB) has effect.

2 Barred lists

(1) IBB must establish and maintain—

(a) the children’s barred list;

(b) the adults' barred list.

(2) Part 1 of Schedule 3 applies for the purpose of determining whether an individual is included in the children’s barred list.

(3) Part 2 of that Schedule applies for the purpose of determining whether an individual is included in the adults' barred list.

(4) Part 3 of that Schedule contains supplementary provision.

(5) In respect of an individual who is included in a barred list, IBB must keep other information of such description as is prescribed.

3 Barred persons

(1) A reference to a person being barred from regulated activity must be construed in accordance with this section.

(2) A person is barred from regulated activity relating to children if he is—

(a) included in the children’s barred list;

(b) included in a list maintained under the law of Scotland or Northern Ireland which the Secretary of State specifies by order as corresponding to the children’s barred list.

(3) A person is barred from regulated activity relating to vulnerable adults if he is—

(a) included in the adults' barred list;

(b) included in a list maintained under the law of Scotland or Northern Ireland which the Secretary of State specifies by order as corresponding to the adults' barred list.

4 Appeals

(1) An individual who is included in a barred list may appeal to the Tribunal against—

(a) a decision under paragraph 2 or 8 of Schedule 3 not to remove him from the list;

(b) a decision under paragraph 3, 5, 9 or 11 of that Schedule to include him in the list;

(c) a decision under paragraph 17 or 18 of that Schedule not to remove him from the list.

(2) An appeal under subsection (1) may be made only on the grounds that IBB has made a mistake—

(a) on any point of law;

(b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based.

(3) For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

(4) An appeal under subsection (1) may be made only with the permission of the Tribunal.

(5) Unless the Tribunal finds that IBB has made a mistake of law or fact, it must confirm the decision of IBB.

(6) If the Tribunal finds that IBB has made such a mistake it must—

(a) direct IBB to remove the person from the list, or

(b) remit the matter to IBB for a new decision.

(7) If the Tribunal remits a matter to IBB under subsection (6)(b)—

(a) the Tribunal may set out any findings of fact which it has made (on which IBB must base its new decision); and

(b) the person must be removed from the list until IBB makes its new decision, unless the Tribunal directs otherwise.

(8) The Secretary of State may by regulations make provision as to the procedure of the Tribunal (including provision as to the award of costs by the Tribunal).

(9) A person may appeal on a point of law to the Court of Appeal against a decision of the Tribunal.

(10) An appeal under subsection (9) may be made only with the permission of the Court of Appeal.

(11) In this section “the Tribunal” means the Tribunal established under section 9 of the Protection of Children Act 1999 (c. 14).

Regulated activity

5 Regulated activity

(1) A reference to regulated activity relating to children must be construed in accordance with Part 1 of Schedule 4.

(2) A reference to regulated activity relating to vulnerable adults must be construed in accordance with Part 2 of that Schedule.

(3) The Secretary of State may by order amend that Schedule, or any of the modifications of that Schedule in the provisions mentioned in subsection (4), so as to vary the meaning of—

(a) regulated activity relating to children;

(b) regulated activity relating to vulnerable adults.

(4) The provisions are—

• section 7(5);

• section 9(5);

• section 10(3);

• section 19(8);

• paragraph 4 of Schedule 6.

Regulated activity providers

6 Regulated activity providers

(1) A reference to a regulated activity provider must be construed in accordance with this section.

(2) A person (P) is a regulated activity provider if—

(a) he is responsible for the management or control of regulated activity,

(b) if the regulated activity is carried out for the purposes of an organisation, his exercise of that responsibility is not subject to supervision or direction by any other person for those purposes, and

(c) he makes, or authorises the making of, arrangements (whether in connection with a contract of service or for services or otherwise) for another person to engage in that activity.

(3) A person (P) is also a regulated activity provider if section 53(4) (fostering) so provides.

(4) A person (P) is also a regulated activity provider if he carries on a scheme—

(a) under which an individual agrees with P to provide care or support (which may include accommodation) to an adult who is in need of it, and

(b) in respect of which a requirement to register arises under section 11 of the Care Standards Act 2000 (c. 14).

(5) P is not a regulated activity provider if he is an individual and the arrangements he makes are private arrangements.

(6) Arrangements are private arrangements if the regulated activity is for, or for the benefit of, P himself.

(7) Arrangements are private arrangements if the regulated activity is for, or for the benefit of, a child or vulnerable adult who is—

(a) a member of P’s family;

(b) a friend of P.

(8) A person does not make arrangements for another to engage in a regulated activity merely because he (alone or together with others) appoints that person—

(a) to a position mentioned in paragraph 4(1)(a), (b), (g), (h), (i), (j) or (m) or 8(1)(a), (d) or (e) of Schedule 4,

(b) as a deputy under section 16(2)(b) of the Mental Capacity Act 2005 (c. 9);

(c) as member or chief executive of IBB;

(d) to any position mentioned in paragraph (a), (b) or (f) of section 59(10) or to exercise any function mentioned in that paragraph.

(9) For the purposes of subsection (7) it is immaterial whether P is also acting in any capacity other than as a family member or friend.

(10) If a regulated activity provider is an unincorporated association any requirement of or liability (including criminal liability) under this Act must be taken to be a requirement on or liability of—

(a) the person responsible for the management and control of the association, or

(b) if there is more than one such person, all of them jointly and severally.

(11) “Family” and “friend” must be construed in accordance with section 58.

(12) The Secretary of State may by order provide that in specified circumstances a person who makes, or authorises the making of, arrangements (of any description) for another to engage in regulated activity either is or is not a regulated activity provider.

Restrictions on participating in regulated activity

7 Barred person not to engage in regulated activity

(1) An individual commits an offence if he—

(a) seeks to engage in regulated activity from which he is barred;

(b) offers to engage in regulated activity from which he is barred;

(c) engages in regulated activity from which he is barred.

(2) A person guilty of an offence under subsection (1) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or to a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

(3) It is a defence for a person charged with an offence under subsection (1) to prove that he did not know, and could not reasonably be expected to know, that he was barred from that activity.

(4) It is a defence for a person charged with an offence under subsection (1) to prove—

(a) that he reasonably thought that it was necessary for him to engage in the activity for the purpose of preventing harm to a child or vulnerable adult (as the case may be),

(b) that he reasonably thought that there was no other person who could engage in the activity for that purpose, and

(c) that he engaged in the activity for no longer than was necessary for that purpose.

(5) For the purposes of this section, Schedule 4 is modified as follows—

(a) in paragraph 1, sub-paragraphs (1)(b) and (2)(a) must be disregarded;

(b) in paragraph 7(1), the words “if it is carried out frequently by the same person or the period condition is satisfied” must be disregarded;

(c) in paragraph 7(4), paragraph (a) must be disregarded.

(6) In relation to an offence committed before the commencement of section 282(3) of the Criminal Justice Act 2003 (c. 44), the reference in subsection (2)(b) to 12 months must be taken to be a reference to six months.

8 Person not to engage in regulated activity unless subject to monitoring

(1) An individual commits an offence if—

(a) he engages in regulated activity with the permission of a regulated activity provider, and

(b) he is not subject to monitoring in relation to that activity.

(2) An individual commits an offence if—

(a) he engages in an activity which is a regulated activity by virtue of paragraph 1(3) or (6) of Schedule 4, and

(b) he is not subject to monitoring in relation to regulated activity relating to children.

(3) An individual commits an offence if—

(a) he acts as a member of the governing body of an educational establishment mentioned in subsection (5), and

(b) he is not subject to monitoring in relation to regulated activity relating to children.

(4) A person guilty of an offence under subsection (1), (2) or (3) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5) The establishments are—

(a) an educational institution which is exclusively or mainly for the provision of full-time education to children;

(b) a maintained nursery school (within the meaning of section 39 of the Education Act 2002 (c. 32)).

(6) A person does not commit an offence under subsection (1) or (2) if he has not attained the age of 16.

(7) A person does not commit an offence under subsection (1) if, in relation to any continuous period for which he is permitted to engage in the activity—

(a) the permission is first given before the commencement of this section, and

(b) it continues to have effect after such commencement.

(8) Where subsection (7) applies to a person who is engaged in regulated activity which is relevant NHS employment for the purposes of section 17(1)(d), he does not commit an offence under subsection (1) if he also engages in any other such regulated activity as mentioned in section 17.

(9) Subsection (7) does not apply in respect of permission which continues to have effect after such date as the Secretary of State specifies by order.

(10) A person does not commit an offence under subsection (1) if the regulated activity—

(a) is regulated activity relating to vulnerable adults, and

(b) falls within section 16.

(11) A person does not commit an offence under subsection (3) if, in relation to any continuous period for which he acts as a governor—

(a) his appointment as a governor first took effect before the commencement of this section, and

(b) it continues to have effect after such commencement.

(12) Subsection (11) does not apply in respect of an appointment which continues to have effect after such date as the Secretary of State specifies by order.

(13) It is a defence for a person charged with an offence under subsection (1), (2) or (3) to prove that he did not know, and could not reasonably be expected to know, that he was not subject to monitoring in relation to the activity.

(14) In determining what is the appropriate sentence to pass in respect of a person who is convicted of an offence under this section in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 4 the court must consider the extent to which the offender had regard to any guidance issued by the Secretary of State as to the circumstances in which an activity is carried out frequently.

9 Use of barred person for regulated activity

(1) A person commits an offence if—

(a) he permits an individual (B) to engage in regulated activity from which B is barred,

(b) he knows or has reason to believe that B is barred from that activity, and

(c) B engages in the activity.

(2) A personnel supplier commits an offence if—

(a) he supplies an individual (B) to another (P),

(b) he knows or has reason to believe that P will make arrangements for B to engage in regulated activity from which B is barred, and

(c) he knows or has reason to believe that B is barred from that activity.

(3) A person guilty of an offence under this section is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or to a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

(4) It is a defence for a person charged with an offence under this section to prove—

(a) that he reasonably thought that it was necessary for the barred person to engage in the activity for the purpose of preventing harm to a child or vulnerable adult (as the case may be),

(b) that he reasonably thought that there was no other person who could engage in the activity for that purpose, and

(c) that the barred person engaged in the activity for no longer than was necessary for that purpose.

(5) For the purposes of this section, Schedule 4 is modified as follows—

(a) in paragraph 1, sub-paragraphs (1)(b) and (2)(a) must be disregarded;

(b) in paragraph 7(1), the words “if it is carried out frequently by the same person or the period condition is satisfied” must be disregarded;

(c) in paragraph 7(4), paragraph (a) must be disregarded.

(6) In relation to an offence committed before the commencement of section 282(3) of the Criminal Justice Act 2003 (c. 44), the reference in subsection (3)(b) to 12 months must be taken to be a reference to six months.

10 Use of person not subject to monitoring for regulated activity

(1) A regulated activity provider commits an offence if—

(a) he permits an individual (B) to engage in regulated activity in relation to which B is not subject to monitoring,

(b) he knows or has reason to believe that B is not subject to monitoring in relation to that activity, and

(c) B engages in the activity.

(2) A personnel supplier commits an offence if—

(a) he supplies an individual (B) to another (P),

(b) he knows or has reason to believe that P will make arrangements for B to engage in regulated activity in relation to which B is not subject to monitoring, and

(c) he knows or has reason to believe that B is not subject to monitoring in relation to that activity.

(3) For the purposes of subsection (2)(b), Schedule 4 is modified as follows—

(a) in paragraph 1, sub-paragraphs (1)(b) and (2)(a) must be disregarded;

(b) in paragraph 7(1), the words “if it is carried out frequently by the same person or the period condition is satisfied” must be disregarded;

(c) in paragraph 7(4), paragraph (a) must be disregarded.

(4) A person guilty of an offence under subsection (1) or (2) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5) A person does not commit an offence under subsection (1) or (2) if B has not attained the age of 16.

(6) A person does not commit an offence under subsection (1) if, in relation to any continuous period for which B is permitted to engage in the regulated activity—

(a) the permission is first given before the commencement of this section, and

(b) it continues to have effect after such commencement.

(7) A person does not commit an offence under subsection (1) if—

(a) he falls within section 17,

(b) the permission mentioned in subsection (1) commences at a time when B is engaged in relevant NHS employment mentioned in section 17(1)(b) in circumstances mentioned in subsection (6), and

(c) for the duration of the permission mentioned in subsection (1), B continues to be engaged in that relevant NHS employment.

(8) Subsection (6) or (7) does not apply in respect of permission which continues to have effect after such date as the Secretary of State specifies by order.

(9) A person does not commit an offence under subsection (1) or (2) if the regulated activity—

(a) is regulated activity relating to vulnerable adults, and

(b) falls within section 16.

(10) In determining what is the appropriate sentence to pass in respect of a person who is convicted of an offence under this section in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 4 the court must consider the extent to which the offender had regard to any guidance issued by the Secretary of State as to the circumstances in which an activity is carried out frequently.

(11) A person is not guilty of an offence by virtue of subsection (2) in relation to any period during which B is continuously supplied to another if the period begins before the commencement of this section.

(12) Subsection (11) does not have effect in respect of permission which continues to have effect after such date as the Secretary of State specifies by order.

11 Regulated activity provider: failure to check

(1) A regulated activity provider commits an offence if—

(a) he permits an individual (B) to engage in regulated activity,

(b) B engages in the activity, and

(c) he fails to ascertain whether B is subject to monitoring in relation to the activity.

(2) A regulated activity provider ascertains whether B is subject to monitoring only if—

(a) he obtains an appropriate verification in accordance with Part 1 of Schedule 5 and neither of Parts 2 and 3 of that Schedule is prescribed in relation to him,

(b) he obtains an appropriate verification in accordance with Part 2 of that Schedule and that Part is prescribed in relation to him, or

(c) he obtains an appropriate verification in accordance with Part 3 of that Schedule and that Part is prescribed in relation to him.

(3) A person does not commit an offence under subsection (1) if the regulated activity—

(a) is regulated activity relating to vulnerable adults, and

(b) falls within section 16.

(4) A person does not commit an offence under subsection (1) if he falls within section 17.

(5) A person does not commit an offence under subsection (1) if B has not attained the age of 16.

(6) A person does not commit an offence under subsection (1) if, in relation to any continuous period for which B is permitted to engage in the regulated activity—

(a) the permission is first given before the commencement of this section, and

(b) it continues to have effect after such commencement.

(7) Subsection (6) does not apply in respect of permission which continues to have effect after such date as the Secretary of State specifies by order.

(8) A person commits an offence if—

(a) he provides written confirmation under Schedule 5 that is false in any material respect, and

(b) he either knows that it is false or is reckless as to whether it is false.

(9) A person guilty of an offence under subsection (1) or (8) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(10) In determining what is the appropriate sentence to pass in respect of a person who is convicted of an offence under this section in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 4 the court must consider the extent to which the offender had regard to any guidance issued by the Secretary of State as to the circumstances in which an activity is carried out frequently.

12 Personnel suppliers: failure to check

(1) Schedule 6 (employment businesses: failure to check) has effect.

(2) The Secretary of State may by order make provision (including provision amending this Act) corresponding to Schedule 6 in relation to the supply of persons by a personnel supplier otherwise than in the course of carrying on an employment business.

13 Educational establishments: check on members of governing body

(1) The appropriate officer (P) commits an offence if he fails in the prescribed period to make a check in accordance with section 15 relating to any person (B) who is appointed to the governing body of an educational establishment mentioned in section 8(5).

(2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(3) A person does not commit an offence under subsection (1) if, in relation to any continuous period for which B is a member of the governing body of the establishment—

(a) the appointment first took effect before the commencement of this section, and

(b) it continues to have effect after such commencement.

(4) Subsection (3) does not apply in respect of an appointment which continues to have effect after such date as the Secretary of State specifies by order.

(5) An appropriate officer is such person as is prescribed.

14 Office holders: offences

(1) The Secretary of State may by regulations provide that a person commits an offence if—

(a) he engages in activity that is regulated activity by virtue of paragraph 1(9) or 7(9) of Schedule 4, and

(b) he is not subject to monitoring in relation to the activity.

(2) The Secretary of State may by regulations provide that a prescribed person (P) commits an offence if he fails in the prescribed period to make a check in accordance with section 15 in relation to another person (B) appointed to a position mentioned in paragraph 4(1) or 8(1) of Schedule 4.

(3) Regulations under subsection (1) or (2) may provide for defences to the offence.

(4) An offence created by regulations under this section is punishable on summary conviction with a maximum fine not exceeding level 5 on the standard scale.

15 Sections 13 and 14: checks

(1) This section has effect for the purposes of sections 13 and 14.

(2) P makes a check in accordance with this section if—

(a) he obtains relevant information relating to B in pursuance of an application under section 30, or

(b) he obtains a copy of an enhanced criminal record certificate relating to B issued in relation to P.

(3) P makes a check in accordance with this section if—

(a) an enhanced criminal record certificate relating to B is issued during the prescribed period,

(b) the application for the certificate is countersigned on behalf of P by a registered person (within the meaning of Part 5 of the Police Act 1997 (c. 50)), and

(c) P obtains from the registered person the information mentioned in subsection (4) derived from the certificate.

(4) The information is—

(a) whether B is subject to monitoring, and

(b) whether the Independent Barring Board is considering whether to include B in a barred list in pursuance of paragraph 3 or 5 or (as the case may be) 9 or 11 of Schedule 3.

(5) In subsection (2)(a) “relevant information” means—

(a) in relation to a person appointed to a position mentioned in paragraph 4(1) of Schedule 4, relevant information relating to children (within the meaning of section 31);

(b) in relation to a person appointed to a position mentioned in paragraph 8(1) of Schedule 4, relevant information relating to vulnerable adults (within the meaning of section 31).

(6) For the purposes of subsection (2)(b) an enhanced criminal record certificate is issued in relation to P only if—

(a) he countersigned the application for the certificate as a registered person for the purposes of Part 5 of the Police Act 1997 (c. 50), or

(b) the application was countersigned on his behalf by such a person.

(7) In this section “enhanced criminal record certificate” means—

(a) in relation to a person appointed to a position mentioned in paragraph 4(1) of Schedule 4, an enhanced criminal record certificate issued under the Police Act 1997 containing suitability information relating to children (within the meaning of section 113BA of that Act);

(b) in relation to a person appointed to a position mentioned in paragraph 8(1) of Schedule 4, an enhanced criminal record certificate issued under that Act containing suitability information relating to vulnerable adults (within the meaning of section 113BB of that Act).

Exceptions

16 Exception to requirement to make monitoring check

(1) Regulated activity falls within this section if it is carried out for the purposes of or in connection with any of the following—

(a) an establishment for the detention of persons in lawful custody (within the meaning of section 59(7)(a) to (c));

(b) a recreational, social, sporting or educational activity provided wholly or mainly for vulnerable adults;

(c) a course of education or instruction which is provided wholly or mainly for vulnerable adults and is of a prescribed description;

(d) the provision of services, by or on behalf of a person who provides or manages housing, to vulnerable adults in connection with that housing;

(e) welfare services of a prescribed description;

(f) dealing with payments by a person appointed to receive them as mentioned in section 59(10)(f).

(2) Activity does not fall within this section if the individual engaging in the activity is a prison officer acting in the course of his duty.

(3) In subsection (2) “prison officer” includes—

(a) a prisoner custody officer within the meaning of section 89(1) of the Criminal Justice Act 1991 (c. 53);

(b) a custody officer within the meaning of section 12(3) of the Criminal Justice and Public Order Act 1994 (c. 33).

(4) Activity does not fall within this section by virtue of paragraph (b) of subsection (1) if—

(a) the activity is carried out by or for a local authority in connection with the provision of community care services within the meaning of section 46 of the National Health Service and Community Care Act 1990 (c. 19);

(b) the activity is carried out by or in an establishment in relation to which a requirement to register arises under section 11 of the Care Standards Act 2000 (c. 14);

(c) the activity is carried out by an agency in relation to which such a requirement arises;

(d) the activity is carried out by a person to whom Part 2 of that Act applies in pursuance of an order under section 42 of that Act of 2000;

(e) the activity is carried out by an NHS body within the meaning of section 17(3) or by a person who provides health care for such a body.

(5) In this section “welfare services”—

(a) includes services which provide support, assistance, advice or counselling to individuals with particular needs;

(b) does not include community care services within the meaning of section 46 of the National Health Service and Community Care Act 1990.

(6) Paragraphs (b), (c), (d) and (e) of subsection (1) cease to have effect on the relevant day.

(7) The relevant day is—

(a) the last day of the period of three years starting on the day any provision of this section is brought into force, or

(b) such later day as the Secretary of State specifies by order.

(8) A date specified under subsection (7)(b) must be not more than three years after—

(a) the relevant day as mentioned in subsection (7)(a), or

(b) the last day specified in respect of the paragraph concerned under subsection (7)(b).

(9) The Secretary of State may by order amend or omit any paragraph of subsection (1).

17 NHS employment

(1) A regulated activity provider falls within this section if—

(a) he permits a person (E) to engage in regulated activity,

(b) immediately before the permission takes effect E is engaged in relevant NHS employment,

(c) for the duration of the permission E continues to be engaged in that relevant NHS employment, and

(d) the regulated activity is also relevant NHS employment.

(2) Relevant NHS employment is employment—

(a) with an NHS body, or

(b) with a person who provides health care for an NHS body (wherever the health care is provided),

in which the employee engages in regulated activity.

(3) Each of the following is an NHS body—

(a) a National Health Service trust;

(b) a Strategic Health Authority;

(c) an NHS foundation trust;

(d) a Local Health Board;

(e) a Special Health Authority;

(f) a Primary Care Trust.

Offences: supplementary

18 Offences: companies &c.

(1) If an offence under section 9, 10, 11, 23, 27 or 38 or Schedule 6 is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of—

(a) a director, manager, secretary or other similar officer of the body, or

(b) a person purporting to act in such a capacity,

he (as well as the body) commits the offence.

(2) If an offence under section 9, 10, 11, 23, 27 or 38 or Schedule 6 is committed by a partnership (whether or not a limited partnership) and is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of—

(a) a partner, or

(b) a person purporting to act as a partner,

he (as well as the partnership) commits the offence.

(3) In subsection (1), “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body.

19 Offences: other persons

(1) A person commits an offence if, in the course of acting or appearing to act on behalf of a regulated activity provider—

(a) he permits an individual (B) to engage in a regulated activity in relation to which B is not subject to monitoring,

(b) he knows or has reason to believe that B is not subject to monitoring in relation to that activity, and

(c) B engages in the activity.

(2) A person commits an offence if, in the course of acting or appearing to act on behalf of a personnel supplier—

(a) he supplies an individual (B) to another (P),

(b) he knows or has reason to believe that P will make arrangements for B to engage in regulated activity from which B is barred, and

(c) he knows or has reason to believe that B is barred from the activity.

(3) A person commits an offence if, in the course of acting or appearing to act on behalf of a personnel supplier—

(a) he supplies an individual (B) to another (P),

(b) he knows or has reason to believe that P will make arrangements for B to engage in regulated activity in relation to which B is not subject to monitoring, and

(c) he knows or has reason to believe that B is not subject to monitoring in relation to the activity.

(4) A person guilty of an offence under subsection (1) or (3) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5) A person guilty of an offence under subsection (2) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or to a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

(6) If the commission of an offence under section 11 is due to the act or reckless default of a person who acts for or appears to act for the regulated activity provider—

(a) that person is guilty of the offence, and

(b) he may be proceeded against and punished whether or not proceedings are also taken against the regulated activity provider.

(7) In the application of subsection (6) to a person who is in Crown employment (within the meaning of the Employment Rights Act 1996 (c. 18)), section 51(2) must be ignored.

(8) For the purpose of subsections (2)(b) and (3)(b), Schedule 4 is modified as follows—

(a) in paragraph 1, sub-paragraphs (1)(b) and (2)(a) must be disregarded;

(b) in paragraph 7(1), the words “if it is carried out frequently by the same person or the period condition is satisfied” must be disregarded;

(c) in paragraph 7(4), paragraph (a) must be disregarded.

(9) In determining what is the appropriate sentence to pass in respect of a person who is convicted of an offence under subsection (1) in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 4 the court must consider the extent to which the offender had regard to any guidance issued by the Secretary of State as to the circumstances in which an activity is carried out frequently.

(10) In relation to an offence committed before the commencement of section 282(3) of the Criminal Justice Act 2003 (c. 44), the reference in subsection (5)(b) to 12 months must be taken to be a reference to six months.

20 Section 19: exclusions and defences

(1) A person does not commit an offence under section 19 if B has not attained the age of 16.

(2) A person does not commit an offence under section 19 if the regulated activity—

(a) is regulated activity relating to adults, and

(b) falls within section 16.

(3) A person does not commit an offence under section 19(1) if, in relation to any continuous period for which B is permitted to engage in the regulated activity—

(a) the permission is first given before the commencement of that section, and

(b) it continues to have effect after such commencement.

(4) Subsection (3) does not have effect in respect of permission which continues to have effect after such date as the Secretary of State specifies by order.

(5) A person does not commit an offence under subsection (1) of section 19 if—

(a) the regulated activity provider for whom he acts or appears to act falls within section 17,

(b) the permission mentioned in subsection (1) of section 19 commences at a time when B is engaged in relevant NHS employment mentioned in section 17(1)(b) in circumstances mentioned in subsection (3) above, and

(c) for the duration of the permission mentioned in subsection (1) of section 19, B continues to be engaged in that relevant NHS employment.

(6) A person is not guilty of an offence under section 19(3) in relation to any period during which B is continuously supplied to another if the period begins before the commencement of that section.

(7) Subsection (6) does not have effect in respect of a supply which continues to have effect after such date as the Secretary of State specifies by order.

Controlled activity

21 Controlled activity relating to children

(1) A reference to a controlled activity relating to children must be construed in accordance with this section.

(2) An activity which falls within any of subsections (3) to (7) is a controlled activity to the extent that it is not a regulated activity relating to children.

(3) An activity falls within this subsection if—

(a) it consists in or is carried out in connection with any form of health care, treatment or therapy to which subsection (8) applies,

(b) it is carried out frequently by the same person or it is carried out by the same person on more than two days in any period of 30 days, and

(c) it gives the person an opportunity mentioned in subsection (9).

(4) An activity falls within this subsection if—

(a) it is carried out in a further education institution (within the meaning of section 140(3) of the Education Act 2002 (c. 32)),

(b) it is carried out frequently by the same person or it is carried out by the same person on more than two days in any period of 30 days,

(c) it is carried out by the person while engaging in any form of work (whether or not for gain),

(d) it is carried out for or in connection with the purposes of the institution, and

(e) it gives the person the opportunity mentioned in subsection (9)(a).

(5) An activity falls within this subsection if—

(a) it consists in making payments under section 17A of the Children Act 1989 (c. 41) or the provision of assistance either in connection with the making of such payments or securing the provision of services paid for out of them,

(b) it is carried out frequently by the same person or it is carried out by the same person on more than two days in any period of 30 days, and

(c) it gives the person the opportunity mentioned in subsection (9)(a).

(6) An activity falls within this subsection if it is carried out as mentioned in subsection (10) frequently and it gives a person carrying out the activity the opportunity to have access to—

(a) health, educational or social services records relating to children;

(b) information provided pursuant to section 117(1) of the Learning and Skills Act 2000 (c. 21);

(c) in the case of a person carrying out an activity mentioned in subsection (10)(b), records of family proceedings (within the meaning of section 8(3) of the Children Act 1989) held by the Children and Family Court Advisory and Support Service;

(d) in the case of a person carrying out an activity mentioned in subsection (10)(c), records of family proceedings (within the meaning of section 8(3) of the Children Act 1989) held by the National Assembly for Wales.

(7) An activity falls within this subsection if it consists in or involves on a regular basis the day to day management or supervision of a person carrying out an activity which falls within subsection (3), (4) or (6).

(8) This subsection applies to health care, treatment or therapy which is provided for a child—

(a) in pursuance of arrangements made by or under an enactment,

(b) in an establishment in relation to which a requirement to register arises under section 11 of the Care Standards Act 2000 (c. 14), or

(c) by an agency in relation to which such a requirement arises.

(9) The opportunities are—