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Safeguarding Vulnerable Groups Act 2006

New vetting and barring scheme - automatic barring for specified offences

The Safeguarding Vulnerable Groups Act 2006 brings in a new scheme for vetting and barring individuals who work with children and vulnerable adults. This is due to come into operation in the autumn of 2008 and a key feature will be an automatic bar if a specified offence has been committed. The list of these offences has been long awaited.

 

In mid-November the Government published the results of the consultation held over the offences to be included in this list. There was widespread agreement with its proposed list, so while we await a statutory instrument giving the list the force of law, we know the offences it will contain.

 

There will be one list of offences that will bar people from working with children and another list covering work with vulnerable adults. The most serious offences on each list will lead to an automatic bar with no opportunity to make representations. The lesser offences will lead to an automatic bar with a right to make representations to the Independent Safeguarding Authority (ISA). While guidance on these representations is awaited, we expect that if the individual's conduct since the commission of the offence shows the offence to be an aberration, and that the individual does not pose an unreasonable risk to the welfare of children or vulnerable adults, the bar will be lifted.

 

The two lists of offences are long and can be accessed using the link below.

 

List of offences.

 

Two key points are worth emphasising:

 

1. An individual will be barred for a caution, as well as a conviction. This may result in some rough justice, with people who had accepted a caution when they would have defended a charge at trial finding themselves treated as if they were convicted.
2. No allowance will be made for the age of the offender, or the amount of time that has passed since the commission of the offence.

 

Devising the list is a very difficult task. Whilst the inclusion of the most serious offences is not problematic, the inclusion of offences at the margins will always be controversial and appear somewhat arbitrary.

 

The offences that result in an automatic bar with no right of representation are all sexual, with the act being either committed against a child or vulnerable adult, or in the presence of a child or a vulnerable adult. As would be expected, serious offences such as rape are included. However, the inclusion of some other offences may cause more controversy. For example, Section 7 of the Sexual Offences Act is included. This makes it an offence for someone to assault sexually a child under 13. This covers all types of sexual contact, including kissing or touching. This assault can be committed by a child over 13, and even though the sexual contact may have been consensual between the two children, in law the child under 13 cannot consent. Therefore it would appear that should a 13 year old touch a 12 year old sexually, even though this was consensual, this would prevent that individual from ever working with children or vulnerable adults.

 

The offences for which there is a right of representation are more varied. These include serious offences of violence, some additional sexual offences and other offences involving prostitution and pornography. The list also includes ill treatment or wilful neglect under Section 44 of the Mental Capacity Act 2005.

 

In any vetting and barring scheme, the issues at stake are of the greatest importance. There needs to be a proper balance between the need to protect children and vulnerable adults and the rights (particularly Human Rights) of individuals working with them. Whether this balance is correctly struck under the new scheme will depend largely on how the ISA operates, and the Government is currently consulting on that. However, for people who have a conviction for an offence where there is no right to make representations, the future would appear to be clear.

 

For more information please contact

Chris or Giles.

 

 

The content of this bulletin is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.