DISQUALIFICATION ORDERS

PURPOSE This circular provides new instructions for PSR authors and supervisors of offenders who qualify for disqualification orders under the Criminal Justice and Court Services Act 2000 as amended by the Criminal Justice Act 2003. ACTION Chief Officers are asked to bring this circular to the attention of all staff with immediate effect. SUMMARY Under Part 2 of the Criminal Justice and Court Services Act 2000 individuals convicted of one of a list of specified sexual and violent offences against a child or supplying Class A drugs to a child are liable to disqualification from working with children. Orders could be made only on those offenders who received a qualifying sentence. Schedule 30 to the Criminal Justice Act 2003 gives the court discretion to make orders in any case where a qualifying offence has been committed regardless of the sentence given, and to make retrospective orders in relevant cases. PSR authors must advise the court about consideration of a disqualification order in all cases where a relevant offence has been committed. Staff must take account of the implications of the disqualification order when supervising the offender and re-issue the written notification of the disqualification when a relevant offender completes a community sentence or post-release licence. There are a number of cases which should have been considered for a disqualification order at the time of sentence but were not. CPS now have the power to make a retrospective application to court for an order in these cases. There is no requirement for probation to trawl for missed cases but where such cases are being supervised a decision must be made about whether or not to refer to CPS for retrospective application. RELEVANT PREVIOUS PROBATION CIRCULARS HOC67/2004 Disqualification Orders (Criminal Justice and Court Services Act 2000) CONTACT FOR ENQUIRIES David Middleton, Head of Sex Offender Programmes 020 7217 0672 david.middleton2@homeoffice.gsi.gov.uk Jo Thompson, Head of Pre and Post-Release 020 7217 0763 Jo.thompson8@homeoffice.gsi.gov.uk

Probation Circular
REFERENCE NO: 17/2005 ISSUE DATE: 14 March 2005 IMPLEMENTATION DATE: Immediate EXPIRY DATE: March 2010 TO: Chairs of Probation Boards Chief Officers of Probation Secretaries of Probation Boards CC: Board Treasurers Regional Managers AUTHORISED BY: Liz Hill, Head Of Public Protection and Courts Unit ATTACHED: Annex A: The lists of offences contained in Schedule 4 to the Criminal Justice Court Services Act 2000 (within PC Word file)

National Probation Directorate
Horseferry House, Dean Ryle Street, London, SW1P 2AW General Enquiries: 020 7217 0659 Fax: 020 7217 0660

Enforcement, rehabilitation and public protection

INTRODUCTION Under Part 2 of the Criminal Justice and Court Services Act 2000 individuals convicted of one of a list of specified sexual and violent offences against a child or supplying Class A drugs to a child are liable to disqualification from working with children. The relevant offences are set out at Schedule 4 to the CJCSA 2000 and this is reproduced, as amended by the Sexual Offences Act 2003, at Annex A. The only courts able to impose disqualification orders are the “Senior Courts” i.e. the Crown Court, Court of Appeal, a court martial or the Courts-Martial Appeals Court. The court is obliged to consider making an order if the sentence reaches a qualifying threshold as follows: • • • 12 months or more imprisonment or detention; 12 months or more detention and training order; A hospital or guardianship order made within the meaning of the Mental Health Act 1983.

The court must make a disqualification order in all relevant cases unless it considers that further offences against children are unlikely. If the court decides not to make an order it must record the reasons for that decision. In addition to the above, Schedule 30 to the Criminal Justice Act 2003 has introduced a discretion for the court to make a disqualification order regardless of the sentence if it is believes that the offender is likely to commit a further offence against a child. Comprehensive guidance on disqualification orders can be accessed through HOC67/2004. MISSED CASES Since the requirement to consider disqualification orders came into force on 11.1.2001, there have been a number of cases in which orders should have been considered but were overlooked. The Criminal Justice Act 2003 has introduced a discretionary power for the CPS to make retrospective application to the court for an order in those cases. HOC 67/2004 HOC 67/2004, distributed to all Chief Probation Officers provides full details about the circumstances in which sentencers should consider the making of disqualification orders. It also sets out the roles and responsibilities of sentencers, the Crown Prosecution Service, court staff, police, prison service/hospitals, probation officers and the Care Standards Tribunal. This Probation Circular provides further details about the role of probation officers. ACTION TO BE TAKEN BY PROBATION STAFF Probation staff should take action in respect of disqualification orders at the following stages: 1. Pre-Sentence Reports When preparing a report on an offender convicted of a relevant offence against a child (see Annex A), the report writer must state that a disqualification order should be considered, and should provide advice on the appropriateness of imposing such an order as an additional child protection measure alongside the sentencing proposal, whether this is for a custodial or community sentence. 2. The supervision of offenders subject to disqualification orders The disqualification order is made at the time of sentence and is effective from that date. In the management of an offender’s risk of harm to children, whether subject to a community order or post-release licence, staff should: • • • ensure that the offender understands the requirements of the order and the reasons for its imposition ensure that the offender is not involved in any work with children whether paid or voluntary, or in any training for such work re-issue the written notice of disqualification when the offender completes a community sentence or post release licence, and remind the offender of the terms of the order.

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3.

Retrospective Action During Supervision • There is no requirement to trawl for cases which may have been missed. However, staff supervising an offender with a conviction for a relevant offence should refer the case to the CPS for possible retrospective application to the court in all cases where it is considered that an order would make a contribution to child protection. It is likely that a disqualification order will remain in force for a considerable time after statutory supervision has ended. Where the offender is being supervised at MAPPA levels 2 or 3, supervising officers should refer to the next available MAPPA meeting to consider referral to the CPS. The prison service Public Protection Manual gives guidance to staff in prisons on the retrospective application, via the CPS, for disqualification orders for newly sentenced and existing prisoners. All CPS Areas have received HOC 67/2004. Prosecutors are aware of the retrospective provisions and that they may receive requests to apply for disqualification orders in relevant cases where the police or probation services consider that an order is necessary to protect children from harm. Probation staff who consider that an order would contribute to child protection should refer the case to the Head of Trial Unit at the local CPS Head Office, who can consider how best the matter should be dealt with locally. Probation Senior Managers, who have responsibility for Courts, should make contact with the local Head of Trial Unit to ensure that they have received HOC 67/2004 from the CPS Director of Policy.

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SUPPORTING ACTIONS Arrangements have been made for future versions of E-OASys to flag cases where a relevant offence has been committed and for future training events to include issues related to disqualification orders.

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Annex A: The lists of offences contained in Schedule 4 to the Criminal Justice Court Services Act 2000 MEANING OF “OFFENCE AGAINST A CHILD” Paragraph 1: a) an offence under section 1 of the Children and Young Persons Act 1933 (cruelty to children), b) an offence under section 1 of the Infanticide Act 1938 (infanticide), c) an offence under section 5 of the Sexual Offences Act 1956 (intercourse with a girl under 13)*, d) an offence under section 6 of that Act (intercourse with a girl under 16)*, e) an offence under section 19 or 20 of that Act (abduction of girl under 18 or 16)*, f) an offence under section 25 or 26 of that Act (permitting girl under 13, or between 13 and 16, to use premises for intercourse)*, g) an offence under section 28 of that Act (causing or encouraging prostitution of, intercourse with or indecent assault on, girl under 16)*, h) an offence under section 1 of the Indecency with Children Act 1960 (indecent conduct towards young child)*, i) an offence under section 54 of the Criminal Law Act 1977 (inciting girl under sixteen to incest)*, j) an offence under section 1 of the Protection of Children Act 1978 (indecent photographs of children), k) an offence under section 1 of the Child Abduction Act 1984 (abduction of child by parent), l) an offence under section 160 of the Criminal Justice Act 1988 (possession of indecent photograph of child), m) an offence under section 3 of the Sexual Offences (Amendment) Act 2000 (abuse of trust)*, ma)an offence under any of sections 5 to 26 and 47 to 50 of the Sexual Offences Act 2003 (offences against children). These are: i. section 5 (rape of a child under 13), ii. section 6 (assault of a child under 13 by penetration), iii. section 7 (sexual assault of a child under 13), iv. section 8 (causing or inciting a child under 13 to engage in sexual activity), v. section 9 (sexual activity with a child), vi. section 10 (causing or inciting a child to engage in sexual activity), vii. section 11 (engaging in sexual activity in the presence of a child), viii. section 12 (causing a child to watch a sexual act), ix. section 13 (child sex offences committed by children or young persons), x. section 14 (arranging or facilitating commission of a child sex offence), xi. section 15 (meeting a child following sexual grooming etc.), xii. section 16 (abuse of position of trust: sexual activity with a child), xiii. section 17 (abuse of position of trust: causing or inciting a child to engage in sexual activity), xiv. section 18 (abuse of position of trust: sexual activity in the presence of a child), xv. section 19 (abuse of position of trust: causing a child to watch a sexual act), xvi. section 25 (sexual activity with a child family member), xvii. section 26 (inciting a child family member to engage in sexual activity), xviii. section 47 (paying for sexual services of a child), xix. section 48 (causing or inciting child prostitution or pornography), xx. section 49 (controlling a child prostitute or a child involved in pornography), xxi. section 50 (arranging or facilitating child prostitution or pornography).

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Paragraph 2: a) murder, b) manslaughter, c) kidnapping, d) false imprisonment, e) an offence under section 18 or 20 of the Offences against the Person Act 1861 (wounding and causing grievous bodily harm), f) an offence under section 47 of that Act (assault occasioning actual bodily harm), g) an offence under section 1 of the Sexual Offences Act 1956 (rape)*, h) an offence under section 2 or 3 of that Act (procurement of woman by threats or false pretences)*, i) an offence under section 4 of that Act (administering drugs to obtain or facilitate intercourse)*, j) an offence under section 14 or 15 of that Act (indecent assault)*, k) an offence under section 16 of that Act (assault with intent to commit buggery)*, l) an offence under section 17 of that Act (abduction of woman by force or for the sake of her property)*, m) an offence under section 24 of that Act (detention of woman in brothel or other premises)*, n) An offence under section 145 of the Nationality, Immigration and Asylum Act 2002 (traffic in prostitution)*, na) an offence under any of sections 1 to 4, 30 to 41, 52, 53, 57 to 61, 66 and 67 of the Sexual Offences Act 2003. These are: i. section 1 (rape), ii. section 2 (assault by penetration), iii. section 3 (sexual assault), iv. section 4 (causing a person to engage in sexual activity without consent), v. section 30 (sexual activity with a person with a mental disorder impeding choice), vi. section 31 (causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity), vii. section 32 (engaging in sexual activity in the presence of a person with a mental disorder impeding choice), viii. section 33 (causing a person, with a mental disorder impeding choice, to watch a sexual act), ix. section 34 (inducement, threat or deception to procure sexual activity with a person with a mental disorder), x. section 35 (causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception), xi. section 36 (engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder), xii. section 37 (causing a person with a mental disorder to watch a sexual act by inducement, threat or deception), xiii. section 38 (care workers: sexual activity with a person with a mental disorder), xiv. section 39 (care workers: causing or inciting sexual activity), xv. section 40 (care workers: sexual activity in the presence of a person with a mental disorder), xvi. section 41 (care workers: causing a person with a mental disorder to watch a sexual act), xvii. section 52 (causing or inciting prostitution for gain), xviii. section 53 (controlling prostitution for gain), xix. section 57 (trafficking into the UK for sexual exploitation), xx. section 58 (trafficking within the UK for sexual exploitation), xxi. section 59 (trafficking out of the UK for sexual exploitation), xxii. section 61 (administering a substance with intent), xxiii. section 66 (exposure), xxiv. section 67 (voyeurism). o) an offence under section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (trafficking people for exploitation).
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Paragraph 3: a) he commits an offence under section 16 of the Offences against the Person Act 1861 (threats to kill) by making a threat to kill a child, b) he commits an offence under section 7 of the Sexual Offences Act 1956 (intercourse with defective) by having sexual intercourse with a child*, c) he commits an offence under section 9 of that Act (procurement of defective) by procuring a child to have sexual intercourse*, d) he commits an offence under section 10 of that Act (incest by a man) by having sexual intercourse with a child*, e) she commits an offence under section 11 of that Act (incest by a woman) by allowing a child to have sexual intercourse with her*, f) he commits an offence under section 12 of that Act by committing buggery with a child under the age of 16*, g) he commits an offence under section 13 of that Act by committing an act of gross indecency with a child*, h) he commits an offence under section 21 of that Act (abduction of defective from parent or guardian) by taking a child out of the possession of her parent or guardian*, i) he commits an offence under section 22 of that Act (causing prostitution of women) in relation to a child*, j) he commits an offence under section 23 of that Act (procuration of girl under 21) by procuring a child to have sexual intercourse with a third person*, k) he commits an offence under section 27 of that Act (permitting defective to use premises for intercourse) by inducing or suffering a child to resort to or be on premises for the purpose of having sexual intercourse*, l) he commits an offence under section 29 of that Act (causing or encouraging prostitution of defective) by causing or encouraging the prostitution of a child*, m) he commits an offence under section 30 of that Act (man living on earnings of prostitution) in a case where the prostitute is a child*, n) she commits an offence under section 31 of that Act (woman exercising control over prostitute) in a case where the prostitute is a child*, o) he commits an offence under section 128 of the Mental Health Act 1959 (sexual intercourse with patients) by having sexual intercourse with a child*, p) he commits an offence under section 4 of the Sexual Offences Act 1967 (procuring others to commit homosexual acts) by(i) procuring a child to commit an act of buggery with any person, or (ii) procuring any person to commit an act of buggery with a child*, q) he commits an offence under section 5 of that Act (living on earnings of male prostitution) by living wholly or in part on the earnings of prostitution of a child*, r) he commits an offence under section 9(1)(a) of the Theft Act 1968 (burglary), by entering a building or part of a building with intent to rape a child*, s) he commits an offence under section 4(3) of the Misuse of Drugs Act 1971 by(i) supplying or offering to supply a Class A drug to a child, (ii) being concerned in the supplying of such a drug to a child, or (iii) being concerned in the making to a child of an offer to supply such a drug, sa) he commits an offence under section 62 or 63 of the Sexual Offences Act 2003 (committing an offence or trespassing with intent to commit a sexual offence) in a case where the intended offence was an offence against a child, t) he commits an offence of(i) aiding, abetting, counselling, procuring or inciting the commission of an offence against a child, or (ii) conspiring or attempting to commit such an offence. * SOA 2003 removed these offences from Schedule 4 but s.16 of the Interpretation Act 1976 has the effect that disqualification orders may still be made in respect of these offence
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