Protecting Children - Securing their Safety

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The Disqualification

1. As set out above, a list of adults deemed unsuitable to work with children will be put in place, with inclusion of names on the list being founded upon employment (including voluntary workers) and related information. Everyone on the list will be disqualified from working with children and will be liable to prosecution should they ignore this disqualification.

Disqualification as Part of a Sentence

2. In addition, it is intended to create a further group of people who will be disqualified from working with children. This group will comprise those people who are convicted of specific criminal offences against children aged under 18 and who receive a custodial sentence (including suspended sentences) following a sentence to custody in either the Sheriff or the High Court). Custody in this context will cover imprisonment, and detention in hospital.

Offences Attracting Disqualification

3. The types of offences against children aged under 18 which will attract disqualification include murder. culpable homicide, abduction, offences of cruelty and assault, sexual offences and offences relating to indecent behaviour and child pornography. A list of qualifying offences will be scheduled to the legislation. There will be provision to add or remove offences from this list by the affirmative resolution procedure so that any proposed change will first need to be approved by Parliament.

4. The disqualification is to be at the discretion of the judge and imposed as part of the sentence passed That said, the legislation will, however. set out a strong presumption that the judge will impose a disqualification unless there are exceptional reasons not to do so If a judge were not to impose a disqualification he would need to be satisfied that in all circumstances of the case. including any previous convictions the defendant may have, he or she is unlikely to commit further offences against a child aged under 18.

5 This will apply to offenders aged 18 or over. It will also be possible for a judge to impose a disqualification on someone aged under I 8. In that case, however, the judge would need to be satisfied that in all the circumstances of the case the accused is likely to commit further offences against a child aged under 18.

6. The disqualification will be part of the sentence and hence subject to appeal through the courts in the normal way

Disqualification: England and Wales

7. Under the Criminal Justice and Court Services Bill currently before the UK Parliament, a very similar system of disqualification would be put in place in England and Wales. One major difference. however. is that under that Bill, as it stands at present, disqualification would only be triggered if an offender received a sentence of one year's imprisonment or more Scottish Ministers recognise that disqualification is a serious matter, needing proper justification. Their initial view is, however, that any custodial sentence, Imposed following offences against children of a serious kind, as set out in paragraph 3, is of sufficient weight to merit disqualification from working with children unless the judge has specific reasons not to impose disqualification. They would, nevertheless. welcome any views on what type of sentence (which might include taking into account the cumulative effect of repeated sentences individually of short length) should usually lead to disqualification.

Proposal (10) - any custodial sentence, imposed following offences against children of a serious kind, should usually lead to disqualification. Views are sought on this proposal, or any other suggestions on what type of sentence (which might include taking into account the cumulative effect of repeated sentences individually of short length) should usually lead to disqualification.

Giving Effect to Disqualifications

8. Those people disqualified solely as a result of criminal proceedings will not appear on the Index. Notice of the disqualification will, however, be passed to the SCRO along with the rest of the sentence imposed. The disqualification will then be notifiable as part of' a criminal record check. From the point of view of employers they will make one enquiry to the SCRO, which will then tell them whether or not someone is disqualified So from the user's point of view the fact that there are two different routes to disqualification will not affect the ability to obtain the information they need from a single source

Penalties

9. Where a disqualified person, while subject to the disqualification. applies for work with children, offers services which would include working with children. accepts an offer of work with children. or works with children, he or she will be liable, if found guilty. to a maximum penalty of 5 years in prison, or unlimited finer or both.

10 A further offence would be put in place where a person gave or offered work with children to a disqualified individual. despite knowing that that individual is disqualified. The same penalties would apply: a maximum 5 years in prison. or an unlimited tine, or both.

11. Where a person is being prosecuted in connection with the above offences, the Procurator Fiscal may decide either to direct for a summary trial (i.e. without jury) or a trial on indictment (trial by jury in a Sheriff Court or in the High Court). The maximum penalty would only be available through trial in the High Court.

Proposal (11) - persons disqualified from working with children as part of a sentence imposed by a judge or through being on the Index will be liable to a criminal sentence should they ignore this disqualification.

Proposal (12) - such persons found guilty of applying for work with children, offering services which include working with children accepting dm offer of work with children, or working with children will be liable to a maximum penalty of 5 years in prison, or unlimited fine, or both.

Proposal (13) - it will be an offence to give or offer work with children to a disqualified individual, despite knowing that the individual in question is disqualified.

Definition of Working with Children

12. The legislation will set out what is meant by working with children in the context of the disqualification. This cannot be exact. The definition will therefore set out the principles for determining whether work should be classed as working with children, rather than providing a list of specific jobs.

13. The key points will be as follows:

• Working with children will cover a wide range of work, including education, health and social care, accommodation, leisure and sporting activities, religious activities and the criminal justice system.
• It will apply regardless of the status of the work - it would apply to paid and unpaid workers in the public, private and voluntary sectors.
• The contact between a child and an adult should be a normal part of the job, rather than incidental or simply one-off contact.
• "Children" will be defined as those aged under 18 years of age, except for those in employment, where children will be defined as those aged under 16.
• As well as those directly working with children, immediate supervisors, managers, and those in a position to take decisions to appoint or dismiss people working with children will themselves be classed as working with children for the purposes of the disqualification.

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