UK Offence Report

Provision of information held by regulated work providers to Independent Safeguarding Authority

article 20(2) of The Protection of Vulnerable Groups (Scotland) Act 2007 (Consequential Provisions) Order 2010

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

2 A person who fails, without reasonable excuse, to comply with paragraph(1) is guilty of an offence and liable, on summary conviction, to

a fine not exceeding the amount specified as level5 on the standard scale.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
An element of the offence, for the prosecution to prove

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

2 A person who fails, without reasonable excuse, to comply with paragraph(1) is guilty of an offence and liable, on summary conviction, to a fine not exceeding the amount specified as level5 on the standard scale.

What would breach article 20(2)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. On these words an offence is committed where a person fails, without reasonable excuse, to comply with paragraph(1).
  2. Doing what the provision prohibits, or failing to do what it requires under the Protection of Vulnerable Groups (Scotland) Act 2007 (Consequential Provisions) Order 2010.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
Not determined
Maximum prison (summary)
Not determined

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
2 November 2010
In force from
Not determined
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

This Order is made under section104 of the Scotland Act 1998 and makes provision in consequence of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp14) (“the 2007 Act”). The 2007 Act establishes a Scheme (under section44) for vetting and disclosure in relation to individuals who wish to do regulated work with children or adults (referred to as the “PVG Scheme”). The 2007 Act also provides that Scottish Ministers must keep a children’s list and an adults’ list (section1(1)). An individual may be listed in one or both of those lists (section1(2)). A listed person is barred from undertaking regulated work with children (if listed in the children’s list) or adults (if listed in the adults’ list). “Regulated work” is defined at section91 of, and schedules2 and 3 to, the 2007 Act. The Safeguarding Vulnerable Groups Act 2006 (c.46) (“the 2006 Act”) and the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 (SI 2007/1351 (N.I.11)) (“the 2007 Order”) establish a similar vetting and barring scheme (“the VBS”) for England, Wales and Northern Ireland. The 2006 Act establishes the Independent Safeguarding Authority (“the ISA”) which makes decisions to bar individuals from working with children or vulnerable adults for England and Wales and Northern Ireland. It also establishes the SVG children’s barred list and SVG adults’ barred list for England and Wales. The 2007 Order establishes the SVG NI children’s barred list and SVG NI adults’ barred list for Northern Ireland. The purpose of this Order is to make provision to ensure the proper operation and cross-border interaction of the 2007 Act, the 2006 Act and the 2007 Order. Part2 of the Order deals with the provision of information to Scottish Ministers by police bodies. Article3 enables the Scottish Ministers, for the purposes of their functions under Parts1 and 2 of the 2007 Act, to require relevant information from police forces in England and Wales, the Police Service of Northern Ireland (“the PSNI”) as well as from the Royal Navy Police, the Royal Military Police, the Royal Air Force Police, the Ministry of Defence Police, the British Transport Police, the Civil Nuclear Constabulary, the Serious Organised Crime Agency and the Child Exploitation and Online Protection Centre. Under article 3, Scottish Ministers can also ask for such information from the States of Jersey Police Force, the salaried police force of the Island of Guernsey, the Isle of Man Constabulary and the Garda Síochána. Provision is also made to require the Scottish Ministers to pay an appropriate fee for information obtained from these relevant police forces. Articles4 and 5 enable the Scottish Ministers to obtain information for the purposes of their functions under Parts1 and 2 of the 2007 Act from persons holding records of convictions, cautions or other information for the use of police forces generally and from persons holding records of fingerprints for the use of the police forces generally. Part3 of the Order deals with the provision of information to the Scottish Ministers by bodies subject to the 2006 Act. Article6 enables the Scottish Ministers to obtain prescribed information from regulated activity providers, responsible persons and personnel suppliers (within the meaning of the 2006 Act). The prescribed information is set out in the Safeguarding Vulnerable Groups Act 2006 (Prescribed Information) Regulations 2008 S.I. 2008/3265 (“the 2008 Regulations”). Article7 provides that failure to comply with a requirement under article6 to provide information without reasonable excuse is an offence. Articles8, 9 and 10 enable the Scottish Ministers to obtain prescribed information from local authorities, and from keepers of relevant registers and supervisory authorities (within the meaning of the 2006 Act). The prescribed information is set out in the 2008 Regulations. Part4 of the Order deals with the provision of information to Scottish Ministers by bodies subject to the 2007 Order. Article11 amends the 2007 Order, by inserting a provision enabling the Independent Safeguarding Authority to provide the Scottish Ministers with information relevant to their functions under Parts1 and 2 of the 2007 Act. Article12 enables the Scottish Ministers to obtain prescribed information from regulated activity providers, responsible persons and personnel suppliers (within the meaning of the 2007 Order). The prescribed information is set out in the Safeguarding Vulnerable Groups (Prescribed Information) Regulations (Northern Ireland) 2009 (S.R. 2009 No.40) (“the 2009 Regulations”). Article13 provides that failure to comply with a requirement under Article12 to provide information without reasonable excuse is an offence. Articles14, 15 and 16 enable the Scottish Ministers to obtain prescribed information from education and library boards and HSC bodies, and from keepers of relevant registers and supervisory authorities (within the meaning of the 2007 Order). The prescribed information is set out in the 2009 Regulations. Part5 of the Order deals with the provision of information to Scottish Ministers by the Secretary of State. Article17 provides that the Secretary of State may provide the Scottish Ministers with information to enable them to verify the identity of an applicant to scheme under the 2007 Act. The information is such information as the Secretary of State thinks appropriate from data held by the Identity and Passport Service, by the UK Border Agency and by the Secretary of State in connection with keeping records of national insurance numbers. Part6 of the Order deals with the provision of information to the ISA. Articles18 to 20 provide the ISA with powers to require information from the police, from certain public bodies and from regulated work providers in Scotland for the purposes of enabling or assisting it to determine whether to include an individual in, or remove an individual from, the children’s barred list or adults’ barred list maintained under section2 of the 2006 Act or the children’s barred list or adults’ barred list maintained under Article6 of the 2007 Order. Part7 of the Order deals with miscellaneous provision. Article21 provides that references in Part2 of the 2007 Act to a person considering an individual’s suitability to do, or to be offered or supplied for, any type of regulated work include a reference to that person considering an individual’s suitability to be registered or licensed under PartV (driving instruction) ofthe Road Traffic Act 1988. Article22 provides that references in Part2 of the 2007 Act to a person considering an individual’s suitability to do, or to be offered or supplied for, any type of regulated work include a reference to that person considering an individual’s suitability to be registered in the register established and maintained under article19 of the Pharmacy Order 2010 (S.I.2010/231). Article23 amends the General Pharmaceutical Council (Registration Rules) Order of Council 2010 (S.I.2010/1671) to allow the General Pharmaceutical Council to obtain disclosure records under the 2007 Act for the purposes of applications for entry in the Register kept by the General Pharmaceutical Council.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source