Commentary on Sections and Schedules Schedule 3: Barred lists
26.Part 1 sets out how someone may be included in the children’s barred list. Part 2 covers the equivalent rules in relation to the adults’ barred list. For each list there will be four types of cases:
The IBB, if minded to bar, will allow the individual to make representations and, having considered any such representations, decide whether the individual should be included in one or both barred lists.
27.(Note: a person who is included in a corresponding list in Scotland (or Northern Ireland) will be barred from regulated activity in England and Wales by virtue of section 3(2) and (3)).
28.Part 3 sets out general provisions relating to the barred lists. Paragraph 13 places a duty on the IBB to consider all the information it receives and to decide whether it suggests that a person should be included in the lists. Where this information indicates a risk, then the IBB may consider the individual for inclusion in either or both lists.
29.Paragraph 14 ensures that the IBB must take all reasonable steps to notify an individual when he has been included in a barred list.
30.Paragraph 15 allows for regulations to be made governing the procedure which the IBB must follow in making its barring decisions. This also enables time limits to be specified within which decisions must be taken, along with time limits within which IBB must carry out reviews and representations.
31.Paragraph 16 deals with representations. Any information which the IBB proposes to use to make a barring decision is to be made available to the relevant individual to give them a fair opportunity to make representations as to why they should not be barred.
32.Paragraph 17 allows for late representations to be made. This is designed for exceptional cases where, for example, the IBB is unable to locate the person under consideration and has therefore not been able to inform them that they are at risk of being barred. In this case late representations are allowed as of right. Alternatively, an individual may have been unwell, or unable to understand or respond to letters from the IBB, in which case the right to make representations will be dependent on the IBB granting permission.
33.Paragraph 18 makes provision for barred individuals to be able to apply to the IBB to have their case reviewed after the minimum prescribed period has elapsed. An application for a review can only happen with the IBB’s permission. An application for permission may be allowed only if the individual’s circumstances have changed since he was included in the list or last applied for permission.
34.Paragraph 19 provides the IBB with the power to obtain relevant police information in relation to individuals whose cases it is considering. The IBB is required to pay the police a fee determined by the Secretary of State for providing this information.
35.Paragraph 20(1) provides for information to flow from the Secretary of State to the IBB about particular individuals in connection with the current barring schemes. Paragraph 20(2) is the basis on which the information which the Secretary of State gathers in relation to a person who is subject to monitoring must be transferred to the IBB.
36.Paragraph 21 places a duty on the IBB to provide prescribed information to the Secretary of State about an individual who has been barred or that the Board is considering for barring. The Secretary of State, in the guise of the CRB, will perform the administrative function of actually adding the individual’s name to the barred list. There is also the requirement in paragraph 21(c) for the IBB to refer cases to the Secretary of State which come to its attention through the referral process and meet the prescribed criteria for automatic barring.
37.Paragraph 24 sets out the criteria that may be prescribed for automatic barring. This provision also ensures that individuals will not be barred automatically on the basis of any offences they have committed, or orders or directions that have been made in relation to them, before they reached the age of 18.
38.Paragraph 25 places a duty on the courts, when convicting an individual for an automatic barring offence or making a specified order against him, to inform the individual that a consequence of his conviction or order is that IBB will include him in the relevant barred list.