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PURPOSE
Probation
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.
Circular
REFERENCE NO:
ACTION
17/2005
Chief Officers are asked to bring this circular to the attention of all staff with
immediate effect.
ISSUE DATE:
SUMMARY 14 March 2005
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 IMPLEMENTATION DATE:
child or supplying Class A drugs to a child are liable to disqualification from Immediate
working with children. Orders could be made only on those offenders who
received a qualifying sentence. Schedule 30 to the Criminal Justice Act 2003 EXPIRY DATE:
gives the court discretion to make orders in any case where a qualifying March 2010
offence has been committed regardless of the sentence given, and to make
retrospective orders in relevant cases. TO:
PSR authors must advise the court about consideration of a disqualification Chairs of Probation Boards
order in all cases where a relevant offence has been committed. Staff must Chief Officers of Probation
take account of the implications of the disqualification order when supervising
Secretaries of Probation Boards
the offender and re-issue the written notification of the disqualification when a
relevant offender completes a community sentence or post-release licence.
CC:
There are a number of cases which should have been considered for a
Board Treasurers
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 Regional Managers
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 AUTHORISED BY:
whether or not to refer to CPS for retrospective application. Liz Hill, Head Of Public Protection
and Courts Unit
RELEVANT PREVIOUS PROBATION CIRCULARS
HOC67/2004 Disqualification Orders (Criminal Justice and Court Services ATTACHED:
Act 2000) Annex A: The lists of offences
contained in Schedule 4 to the
CONTACT FOR ENQUIRIES Criminal Justice Court Services
David Middleton, Head of Sex Offender Programmes 020 7217 0672 Act 2000 (within PC Word file)
david.middleton2@homeoffice.gsi.gov.uk
Jo Thompson, Head of Pre and Post-Release 020 7217 0763
Jo.thompson8@homeoffice.gsi.gov.uk
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:
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.
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.
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.
• 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.
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.
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).
* 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