Sex Offenders

The Sex Offenders Act 1997 provided for monitoring of sex offenders in the community on the completion of sentences. It established the sex offenders register.

The Protection of Children and Vulnerable Adults NI Order, 2003 provides for the establishment of a list of persons who are unsuitable to work with children or vulnerable adults. A vulnerable adult is one to whom a combination of nursing or personal care needs are provided in a residential care or nursing home, an adult to whom certain prescribed services are provided. It is a home which is either under arrangement with a domiciliary carer or other prescribed persons or an adult who was provided with prescribed services by a health services body or at a private hospital.

The persons may be included in the list where evidence is provided by certain bodies which believe to the inference that the person is guilty of misconduct which has harmed a child and vulnerable adult or placed him/her at a risk of harm, making the persons unsuitable to work with the child or vulnerable person.

The circumstances include dismissal by an organisation on the grounds of misconduct, whether employment or otherwise which harmed the child or placed the child at risk. Resignation or termination of employment in circumstances which would have justified such dismissal, transfer within the organisation to a non-child care position because the person has harmed or placed the child at harm risk, suspension or positional transfer in the above context for position which is not a child care position, the organisation has become aware of information which suggests the person could have placed children at risk or harm after dismissal or resignation.

Social care organisations, employment agencies, nursing agencies are obliged to notify the department where a person is excluded from the registers because of fears that they may put a child or vulnerable adults at risk of harm or where they will not offer a child care position to the person concerned. The lists are compiled on the basis of information supplied by child care organisations that work with children and vulnerable adults.

A person included in the list may appeal to the social care tribunal. The appeal may succeed if the tribunal is not satisfied that the person has been guilty of misconduct which harmed the child or placed the child at risk and is unsuitable to work with children or a vulnerable adult.

A later appeal could be made to remove a person’s name from the list once the person has been on the list for 10 years. The application will only be allowed if the circumstances can be shown to have changed. Application could be made to court to restore the person to the list if there is any reason to believe that it is necessary to do so.

The second statutory list relates to persons who are excluded from working in educational establishments due to misconduct and suitability to work with children. Persons included in this list have a similar right to appeal to the social care tribunal as above.

Checks are made against the statutory lists and against criminal records when persons are being offered positions in child care or education. A person included in the list may not be employed for such purpose. They must be transferred if already employed.

Where a person is convicted of certain sexual criminal offences relating to sexual misconduct, cruelty or indecent conduct to children the court must make an order prohibiting the person from working with children. Where the offence is not a sexual offence, a disqualification order may be made. Where the manner in which the offence was committed gives rise to concerns that the person may be a danger to children.

A disqualification order may be made where the sentence is for more than 12 months or the equivalent attention under mental health legislation. A disqualification order may be appealed to the social care tribunal. The tribunal determines whether the person is suitable to work with children.

It is an offence for a disqualified person included on one of the lists to apply for a job which involves access to children. It is an offence to employ a person for such a position unless the employer did not know or could not reasonably be expected to know that the offender was disqualified.

A person convicted or cautioned of certain sex offences must notify the police of his address and notify changes of address for a period. The police can require the person to be photographed and fingerprinted in order to establish identity.

The period in which the obligation to remain on the sex offender depends on the length of the underlying imprisonment sentence. In the case of conviction for punishment of over two and a half years it is indefinite. In cases of other disposal, it is five years.

The application applies to persons convicted of sex offences outside the United Kingdom. They must apply to the register once they become residents in or citizens of the UK. Failure to notify without reasonable cause is an offence.

A sex offender order may be made by a court where it considers it necessary to protect the public from harm. Application for the order may be made by the police where there is reasonable cause to believe that the order is necessary to protect the public from serious harm from the offender. The court may prohibit the offender from engaging in activity necessary for the purpose of protecting the public from harm.

The order is a civil order which, for example, may be made in relation to a person convicted under older legislation prior to the sex offenders register.

Where a court imposes a sentence of imprisonment or the equivalent under mental health legislation, a restraining order may be made. The order may be made where the court is satisfied that it is necessary to do so to protect the public in general or protect the members of the public from serious harm. The restraining order may prohibit the offender from doing things specified.

The contents of registers are generally confidential and are disclosed with the police and other authorities. Authorities may notify other persons where they believe it is appropriate for the protection of the public.

Public authorities must make a balancing act between the rights of the offender and the public. There must be a pressing need for disclosure. The matter could be controversial and difficult where the person has not been convicted of an offence but has demonstrably engaged in behaviour which gives rise to a reasonable risk of harm to children or vulnerable adults.