Statutory Instruments
NORTHERN IRELAND
Made
2nd May 2007
Laid
9th May 2007
Coming into operation in accordance with Article 1(2) and (3)
Professional bodies and supervisory authorities
45. Registers: notice of barring and cessation of monitoring
48. Supervisory authorities: duty to provide information on request
49. Supervisory authorities: power to apply for vetting information
50. Supervisory authorities: notification of barring, etc in respect of children
51. Supervisory authorities: notification of barring, etc. in respect of vulnerable adults
SCHEDULES:
At the Court at Buckingham Palace, the 2nd day of May 2007
Present,
The Queen’s Most Excellent Majesty in Council
Whereas this Order in Council is made only for purposes corresponding to those of the Safeguarding Vulnerable Groups Act 2006 (c. 47):
Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1(1) of the Schedule to the Northern Ireland Act 2000 (c. 1) (as modified by section 55 of the said Act of 2006) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:–
1.—(1) This Order may be cited as the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007.
(2) This Article and Articles 2 to 4, 58 and 61 come into operation two weeks after the day on which this Order is made.
(3) The other provisions of this Order come into operation on such day or days as the Secretary of State may by order appoint.
2.—(1) Subject to Article 22(1), the Interpretation Act (Northern Ireland) 1954 (c. 33) applies to this Order as it applies to an Act of the Assembly.
(2) In this Order—
“the 1972 Order” means the Health and Personal Social Services (Northern Ireland) Order 1972 (NI 14);
“the 2003 Order” means the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (NI 9);
“the adults' barred list” must be construed in accordance with Article 6(1)(b);
“barred list” means the children’s barred list or the adults' barred list;
“child” means a person who has not attained the age of 18;
“the Children Order” means the Children (Northern Ireland) Order 1995 (NI 2);
“the children’s barred list” must be construed in accordance with Article 6(1)(a);
“employment agency” and “employment business” must be construed in accordance with Part II of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (NI 20);
“HSS body” means any of the following within the meaning of the 1972 Order—
a Health and Social Services Board,
a Health and Social Services trust;
a special health and social services agency;
“IBB” must be construed in accordance with Article 5;
“institution of further education” has the same meaning as in the Further Education (Northern Ireland) Order 1997 (NI 15);
“personal social services” has the same meaning as in the 1972 Order;
“personnel supplier” means—
a person carrying on an employment agency or an employment business, or
an educational institution which supplies to another person a student who is following a course at the institution, for the purpose of enabling the student to obtain experience of engaging in regulated or controlled activity;
“prescribed” means prescribed by regulations made by the Secretary of State;
“the Regulation and Improvement Authority” means the Northern Ireland Health and Personal Social Services Regulation and Improvement Authority;
“statutory provision” must be construed in accordance with section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c,33);
“supervisory authority” must be construed in accordance with Article 47(7);
“vulnerable adult” must be construed in accordance with Article 3.
(2) A reference (however expressed) to a person being barred must be construed in accordance with Article 7.
(3) A reference to a person being subject to monitoring in relation to a regulated activity must be construed in accordance with Article 28.
(4) Nothing in this Order affects any power to provide information which exists apart from this Order.
3.—(1) A person is a vulnerable adult if he has attained the age of 18 and—
(a) he is in residential accommodation,
(b) he is in sheltered housing,
(c) he receives domiciliary care,
(d) he receives any form of health care,
(e) he is detained in lawful custody,
(f) he is by virtue of an order of a court under supervision by a probation officer,
(g) he receives a welfare service of a prescribed description,
(h) he receives any service or participates in any activity provided specifically for persons who fall within paragraph (9),
(i) payments are made to him (or to another on his behalf) in pursuance of arrangements under section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002 (c. 6), or
(j) he requires assistance in the conduct of his own affairs.
(2) Residential accommodation is accommodation provided for a person—
(a) in connection with any care or nursing he requires, or
(b) who is or has been a pupil attending a residential special school.
(3) A residential special school is a school which provides residential accommodation for its pupils and which is—
(a) a special school within the meaning of Article 3(5) of the Education (Northern Ireland) Order 1996 (NI 1);
(b) an independent school which is approved by the Department of Education in accordance with Article 26 of that Order; or
(c) an institution of further education which provides accommodation for children.
(4) Domiciliary care is care of any description or assistance falling within paragraph (5) whether provided continuously or not which a person receives in a place where he is, for the time being, living.
(5) Assistance falls within this paragraph if it is (to any extent) provided to a person by reason of—
(a) his age;
(b) his health;
(c) any disability he has.
(6) Health care includes treatment, therapy or palliative care of any description.
(7) A person is in lawful custody if he is—
(a) detained in a prison, remand centre or young offenders centre;
(b) a detained person (within the meaning of Part 8 of the Immigration and Asylum Act 1999 (c. 33)) who is detained in a removal centre or short-term holding facility (within the meaning of that Part) or in pursuance of escort arrangements made under section 156 of that Act.
(8) The reference to a welfare service must be construed in accordance with Article 20(5).
(9) A person falls within this paragraph if—
(a) he has particular needs because of his age;
(b) he has any form of disability;
(c) he has a physical or mental problem of such description as is prescribed;
(d) she is an expectant or nursing mother in receipt of care under Article 8 of the 1972 Order;
(e) he is a person of a prescribed description not falling within sub-paragraphs (a) to (d).
(10) A person requires assistance in the conduct of his own affairs if—
(a) an enduring power of attorney (within the meaning of the Enduring Powers of Attorney (Northern Ireland) Order 1987 (NI 16) in respect of him is registered in accordance with that Order or an application is made under that Order for the registration of an enduring power of attorney in respect of him;
(b) an order under Article 99 or 101 of the Mental Health (Northern Ireland) Order 1986 (NI 4) has been made by the High Court in relation to him or his property or affairs, or such an order has been applied for;
(c) a representative is or is to be appointed to receive payments on his behalf in pursuance of regulations made under the Social Security Administration (Northern Ireland) Act 1992 (c. 8).
(11) The Secretary of State may by order provide that a person specified in the order or of a description so specified who falls within paragraph (1) is not to be treated as a vulnerable adult.
4.—(1) This Order does not apply to any activity which is carried out in the course of a family relationship.
(2) This Order does not apply to any activity which is carried out—
(a) in the course of a personal relationship, and
(b) for no commercial consideration.
(3) A family relationship includes a relationship between two persons who—
(a) live in the same household, and
(b) treat each other as though they were members of the same family.
(4) A personal relationship is a relationship between or among friends.
(5) A friend of a person (A) includes a person who is a friend of a member of A’s family.
(6) The Secretary of State may by order provide that an activity carried out in specified circumstances either is or is not—
(a) carried out in the course of a family relationship;
(b) carried out in the course of a personal relationship.
5. In this Order references to IBB are references to the Independent Barring Board established by section 1 of the Safeguarding Vulnerable Groups Act 2006 (c. 47).
6.—(1) IBB must establish and maintain—
(a) the children’s barred list;
(b) the adults' barred list.
(2) Part I of Schedule 1 applies for the purpose of determining whether an individual is included in the children’s barred list.
(3) Part II of that Schedule applies for the purpose of determining whether an individual is included in the adults' barred list.
(4) Part III 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.
7.—(1) A reference to a person being barred from regulated activity must be construed in accordance with this Article.
(2) A person is barred from regulated activity relating to children if he is—
(a) included in the children’s barred list; or
(b) included in a list maintained under the law of England and Wales or Scotland 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; or
(b) included in a list maintained under the law of England and Wales or Scotland which the Secretary of State specifies by order as corresponding to the adults' barred list.
8.—(1) An individual who is included in a barred list may appeal to the Care Tribunal against—
(a) a decision under paragraph 2 or 8 of Schedule 1 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 paragraph (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 paragraph was based.
(3) For the purposes of paragraph (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 paragraph (1) may be made only with the leave of the Care Tribunal.
(5) Unless the Care Tribunal finds that IBB has made a mistake of law or fact, it must confirm the decision of IBB.
(6) If the Care 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 Care Tribunal remits a matter to IBB under paragraph (6)(b)—
(a) the Care 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 Care Tribunal directs otherwise.
(8) In this Article “the Care Tribunal” means the Tribunal established under Article 44 of the 2003 Order.
9.—(1) A reference to regulated activity relating to children must be construed in accordance with Part I of Schedule 2.
(2) A reference to regulated activity relating to vulnerable adults must be construed in accordance with Part II 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 paragraph (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—
(a) Article 11(5),
(b) Article 13(5),
(c) Article 14(3),
(d) Article 23(8),
(e) paragraph 4 of Schedule 4.
10.—(1) A reference to a regulated activity provider must be construed in accordance with this Article.
(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 Article 55(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 Article 12 of the 2003 Order.
(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), (e), (g), (h) or (i) or 8(1)(a) or (d) of Schedule 2,
(b) as a controller under Article 101 of the Mental Health (Northern Ireland) Order 1986 (NI 4);
(c) as member or chief executive of IBB;
(d) to any position mentioned in sub-paragraph (a) or (c) of Article 3(10) or to exercise any function mentioned in that paragraph.
(9) For the purposes of paragraph (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 Order 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 Article 4.
(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.
11.—(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 paragraph (1) is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both;
(b) on summary conviction, to imprisonment for a term not exceeding 6 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 paragraph (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 paragraph (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 Article, Schedule 2 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.
12.—(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) of Schedule 2, 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 paragraph (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 paragraph (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 nursery school within the meaning of the Education and Libraries (Northern Ireland) Order 1986 (NI 3).
(6) A person does not commit an offence under paragraph (1) or (2) if he has not attained the age of 16.
(7) A person does not commit an offence under paragraph (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 Article, and
(b) it continues to have effect after such commencement.
(8) Where paragraph (7) applies to a person who is engaged in regulated activity which is relevant HSS employment for the purposes of Article 21(1)(d), he does not commit an offence under paragraph (1) if he also engages in any other such regulated activity as mentioned in Article 21.
(9) Paragraph (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 paragraph (1) if the regulated activity—
(a) is regulated activity relating to vulnerable adults, and
(b) falls within Article 20.
(11) A person does not commit an offence under paragraph (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 Article, and
(b) it continues to have effect after such commencement.
(12) Paragraph (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 paragraph (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 Article in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 2 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.
13.—(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 that 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 Article is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both;
(b) on summary conviction, to imprisonment for a term not exceeding 6 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 Article 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 Article, Schedule 2 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.
14.—(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 that 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 that activity.
(3) For the purposes of paragraph (2)(b), Schedule 2 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 paragraph (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 paragraph (1) or (2) if he has not attained the age of 16.
(6) A person does not commit an offence under paragraph (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 Article, and
(b) it continues to have effect after such commencement.
(7) A person does not commit an offence under paragraph (1) if—
(a) he falls within Article 21,
(b) the permission mentioned in paragraph (1) commences at a time when B is engaged in relevant HSS employment mentioned in Article 21(1)(b) in circumstances mentioned in paragraph (6), and
(c) for the duration of the permission mentioned in paragraph (1), B continues to be engaged in that relevant HSS employment.
(8) Paragraph (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 paragraph (1) or (2) if the regulated activity—
(a) is regulated activity relating to vulnerable adults, and
(b) falls within Article 20.
(10) In determining what is the appropriate sentence to pass in respect of a person who is convicted of an offence under this Article in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 2 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 paragraph (2) in relation to any period during which B is continuously supplied to another if the period begins before the commencement of this Article.
(12) Paragraph (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.
15.—(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 I of Schedule 3 and neither of Parts II and III of that Schedule is prescribed in relation to him,
(b) he obtains an appropriate verification in accordance with Part II of that Schedule and that Part is prescribed in relation to him, or
(c) he obtains an appropriate verification in accordance with Part III of that Schedule and that Part is prescribed in relation to him.
(3) A person does not commit an offence under paragraph (1) if the regulated activity—
(a) is regulated activity relating to vulnerable adults, and
(b) falls within Article 20.
(4) A person does not commit an offence under paragraph (1) if he falls within Article 21.
(5) A person does not commit an offence under paragraph (1) if B has not attained the age of 16.
(6) A person does not commit an offence under paragraph (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) Paragraph (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 3 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 paragraph (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 Article in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 2 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.
16.—(1) Schedule 4 (employment businesses: failure to check) has effect.
(2) The Secretary of State may by order make provision (including provision amending this Order) corresponding to Schedule 4 in relation to the supply of persons by a personnel supplier otherwise than in the course of carrying on an employment business.
17.—(1) The appropriate officer (P) commits an offence if he fails in the prescribed period to make a check in accordance with Article 19 relating to any person (B) who is appointed to the governing body of an educational establishment mentioned in Article 12(5).
(2) A person guilty of an offence under paragraph (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 paragraph (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 Article, and
(b) it continues to have effect after such commencement.
(4) Paragraph (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.
18.—(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(7) or 7(9) of Schedule 2, 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 Article 19 in relation to another person (B) appointed to a position mentioned in paragraph 4(1) or 8(1) of Schedule 2.
(3) Regulations under paragraph (1) or (2) may provide for defences to the offence.
(4) An offence created by regulations under this Article is punishable on summary conviction with a maximum fine not exceeding level 5 on the standard scale.
19.—(1) This Article has effect for the purposes of Articles 17 and 18.
(2) P makes a check in accordance with this Article if—
(a) he obtains relevant information relating to B in pursuance of an application under Article 32, 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 Article 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 paragraph (4) derived from the certificate.
(4) The information is—
(a) whether B is subject to monitoring, and
(b) whether IBB 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 1.
(5) In paragraph (2)(a) “relevant information” means—
(a) in relation to a person appointed to a position mentioned in paragraph 4(1) of Schedule 2, relevant information relating to children (within the meaning of Article 33);
(b) in relation to a person appointed to a position mentioned in paragraph 8(1) of Schedule 2, relevant information relating to vulnerable adults (within the meaning of Article 33).
(6) For the purposes of paragraph (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, or
(b) the application was countersigned on his behalf by such a person.
(7) In this Article “enhanced criminal record certificate” means—
(a) in relation to a person appointed to a position mentioned in paragraph 4(1) of Schedule 2, 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 2, 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).
20.—(1) Regulated activity falls within this Article 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 Article 3(7));
(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 Article 3(10)(c).
(2) Activity does not fall within this Article if the individual engaging in the activity is a prison officer acting in the course of his duty.
(3) In paragraph (2) “prison officer” includes a prisoner custody officer within the meaning of section 122 of the Criminal Justice and Public Order Act 1994 (c. 33).
(4) Activity does not fall within this Article by virtue of paragraph (1)(b) if—
(a) the activity is carried out by or for an HSS body
(b) the activity is carried out by or in an establishment in relation to which a requirement to register arises under Article 12 of the 2003 Order;
(c) the activity is carried out by an agency in relation to which such a requirement arises.
(5) In this Article “welfare services”—
(a) includes services which provide support, assistance, advice or counselling to individuals with particular needs;
(b) does not include personal social services provided by an HSS body.
(6) Sub-paragraphs (b), (c), (d) and (e) of paragraph (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 Article is brought into force, or
(b) such later day as the Secretary of State specifies by order.
(8) A date specified under paragraph (7)(b) must be not more than three years after—
(a) the relevant day as mentioned in paragraph (7)(a), or
(b) the last day specified in respect of the sub-paragraph concerned under paragraph (7)(b).
(9) The Secretary of State may by order amend or omit any sub-paragraph of paragraph (1).
21.—(1) A regulated activity provider falls within this Article if—
(a) he permits a person (E) to engage in regulated activity,
(b) immediately before the permission takes effect E is engaged in relevant HSS employment,
(c) for the duration of the permission E continues to be engaged in that relevant HSS employment, and
(d) the regulated activity is also relevant HSS employment.
(2) Relevant HSS employment is employment—
(a) with an HSS body; or
(b) with a person who provides health care for an HSS body (wherever the health care is provided),
in which the employee engages in regulated activity.
22.—(1) For the purposes of an offence under Article 13, 14, 15, 27, 31 or 40 or Schedule 4, section 20(2) of the Interpretation Act (Northern Ireland) 1954 (c. 33) applies with the omission of the words “the liability of whose members is limited” and where the affairs of a body corporate are managed by its members, applies in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(2) If an offence under Article 13, 14, 15, 27, 31 or 40 or Schedule 4 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.
23.—(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 paragraph (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 paragraph (2) is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both;
(b) on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding the statutory maximum, or to both.
(6) If the commission of an offence under Article 15 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 paragraph (6) to a person who is in Crown employment (within the meaning of the Employment Rights (Northern Ireland) Order 1996 (NI 16)), Article 53(2) must be ignored.
(8) For the purpose of paragraphs (2)(b) and (3)(b), Schedule 2 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 paragraph (1) in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 2 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.
24.—(1) A person does not commit an offence under Article 23 if B has not attained the age of 16.
(2) A person does not commit an offence under Article 23 if the regulated activity—
(a) is regulated activity relating to adults, and
(b) falls within Article 20.
(3) A person does not commit an offence under Article 23(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 Article, and
(b) it continues to have effect after such commencement.
(4) Paragraph (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 paragraph (1) of Article 23 if—
(a) the regulated activity provider for whom he acts or appears to act falls within Article 21,
(b) the permission mentioned in paragraph (1) of Article 23 commences at a time when B is engaged in relevant HSS employment mentioned in Article 21(1)(b) in circumstances mentioned in paragraph (3) above, and
(c) for the duration of the permission mentioned in paragraph (1) of Article 23, B continues to be engaged in that relevant HSS employment.
(6) A person is not guilty of an offence under Article 23(3) in relation to any period during which B is continuously supplied to another if the period begins before the commencement of that Article.
(7) Paragraph (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.
25.—(1) A reference to a controlled activity relating to children must be construed in accordance with this Article.
(2) An activity which falls within any of paragraphs (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 paragraph if—
(a) it consists in or is carried out in connection with any form of health care, treatment or therapy to which paragraph (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 paragraph (9).
(4) An activity falls within this paragraph if—
(a) it is carried out in an institution of further education,
(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 paragraph (9)(a).
(5) An activity falls within this paragraph if—
(a) it consists in making payments under Article 18C of the Children Order 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 paragraph (9)(a).
(6) An activity falls within this paragraph if it is carried out as mentioned in paragraph (10) frequently and it gives a person carrying out the activity the opportunity to have access to—
(a) health, educational or personal social services records relating to children;
(b) information provided pursuant to Article 24 of the Education (Northern Ireland) Order 2006 (NI 11);
(c) in the case of a person carrying out an activity mentioned in paragraph (10)(a), records of family proceedings (within the meaning of Article 8(3) of the Children Order) held by an HSS body.
(7) An activity falls within this paragraph 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 paragraph (3), (4) or (6).
(8) This paragraph applies to health care, treatment or therapy which is provided for a child—
(a) in pursuance of arrangements made by or under a statutory provision,
(b) in an establishment in relation to which a requirement to register arises under Article 12 of the 2003 Order, or
(c) by an agency in relation to which such a requirement arises.
(9) The opportunities are—
(a) opportunity to have any form of contact with children;
(b) opportunity to have access to the health records of children.
(10) The activity is carried out—
(a) for, or on behalf of, an education and library board;
(b) for, or on behalf of, an HSS body in the exercise of its functions relating to personal social services;
(c) for, or on behalf of, the Council for the Curriculum, Examinations and Assessments;
(d) for, or on behalf of, inspectors appointed under Article 102 of the Education and Libraries (Northern Ireland) Order 1986;
(e) for, or on behalf of, an establishment or agency in respect of which a requirement to register arises under Article 12 of the 2003 Order.
(11) In this Article “personal social services records” means records obtained or held by an HSS body in the exercise of its functions relating to personal social services.
(12) The Secretary of State may, by order, amend paragraphs (2) to (11) (including by adding new paragraphs or omitting or varying any of the paragraphs or anything contained in them).
26.—(1) A reference to a controlled activity relating to vulnerable adults must be construed in accordance with this Article.
(2) An activity which is ancillary to or is carried out wholly or mainly in relation to an activity which falls within paragraph (4) is a controlled activity to the extent that it is not a regulated activity relating to vulnerable adults if—
(a) 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
(b) it gives the person an opportunity mentioned in paragraph (5).
(3) An activity which consists in or involves on a regular basis the day to day management or supervision of a person carrying out an activity mentioned in paragraph (2) is also a controlled activity relating to vulnerable adults.
(4) Each of the following falls within this paragraph—
(a) the provision of primary care services;
(b) the provision of hospital services;
(c) the provision of domiciliary care;