Protection of Freedoms Bill

Memorandum submitted by ACPO Disclosure of Criminal Convictions Portfolio (PF 57)

1.

Summary

1.1

This paper is submitted by Commander Simon Pountain of the Metropolitan Police Service in his capacity as the holder of the ACPO Disclosure of Criminal Convictions Portfolio. It supplements the oral evidence provided to the committee by ACPO on 22nd March 2011.

1.2

The submission is in respect of Part 5 of the Bill, and in particular Chapters 1 and 2 of Part 5. As these chapters represent the legislation required to give parliamentary backing to the recommendations of both the Vetting and Barring Scheme Remodelling Review (DfE, DoH and Home Office 2011); together with elements of the review of the criminal records regime in England and Wales by Sunita Mason (Phase 1 Report, "A Common Sense Approach", 2011); the submission focuses on the recommendations of those reviews rather than a line by line commentary on the Bill itself.

1.3

ACPO would wish it to be recorded that it welcomes the UK Government’s proposals to develop a simpler and more proportionate approach to the safeguarding of vulnerable groups. However there are concerns about some of the specific details of the changes which are set out in this paper. ACPO is nonetheless convinced that the revised scheme is a good step towards achieving the government’s aim of "scaling back the scheme to common sense proportions", and that the removal of elements of the existing scheme, such as Registration, Controlled Activity and Continuous Monitoring, does not result in a safeguarding gap.

2.

Police Service Issues:

2.1

ACPO is disappointed that, despite close involvement in both reviews, there are two significant omissions from the Bill:

1) Police Service exemption from "Regulated Activity";

2) Police access to the two "Barred Lists".

2.2

2.2.1

Police Service exemption from Regulated Activity.

The Police Service had previously (successfully) argued that both its officers and staff should be exempt from the (registration) requirements of the existing scheme. The justification for this is that the police vetting regime that applicants to the service undergo prior to appointment (officers), or employment (staff), is far more stringent and intrusive than the checks that are able to be conducted by either the CRB or the ISA as part of their checking procedures.

2.2.2

Incorporated within the police "Recruitment Vetting" standard are detailed checks on the applicant including consideration of all (not just "relevant" as in Part V Police Act disclosures) conviction and non conviction information. Furthermore an assessment of any financial vulnerability is undertaken. Additional checks are also undertaken both on close family members and on associates. Finally, for officers and PCSOs, the police Recruitment Vetting standard will soon incorporate Biometric Vetting such that candidate’s DNA and fingerprints will be speculatively searched against the unmatched crime scene marks database to establish if they are suspected of involvement in any as yet unsolved crimes.

2.2.3

The draft Bill makes no provision for any exemption from Regulated Activity for the Police Service. This is likely to result in personnel fulfilling police roles that fall within the revised definition of Regulated Activity being compelled to obtain the enhanced disclosure certificate plus barred list status check. This again potentially places the Police Service in the situation where it will have to pay an external agency for the privilege of checking police owned information. This can neither be considered efficient nor effective by any objective measure.

2.2.4

It is accepted that provisions within the Bill, specifically at Clause 76(3), will provide the ISA with the power to provide the police with information for the purposes of recruitment to the Police Service in addition to the existing grounds (and thus would permit the police service to check an applicant’s barred status); and further that Clause 72(7)(a) provides that the Secretary of State may disapply the requirement to check the barred lists in respect of persons of a prescribed description (which may include those within the Police Service). However ACPO would argue that these provisions do not go far enough in the unique case of the Police Service which itself owns the majority of information upon which the entire employment vetting system under both Part V of the Police Act, the Safeguarding Vulnerable Groups Act, and the Protection of Freedoms Bill are based.

2.2.5

ACPO therefore recommends that the Police Service and its associated functions are included within the list of those specifically excluded from Regulated Activity under Clause 63 of the Bill. Clearly any engagement in Regulated Activity by police officers or staff outside of their police remit would be regarded in the same way as any non police person engaging in Regulated Activity, and so subject to the same processes.

2.3

2.3.1

Police Access to the Barred Lists.

As stated at (2.2.4) above, Clause 76(3) of the Bill effectively provides a power to the police to request the barred status of an individual by extending the power under s50(a) of the SVGA. Whilst this enables the Police Service to incorporate a barred lists check as part of its recruiting process, access to the barred status of an individual for the purposes of the prevention and detection of crime is still considered by ACPO to be inadequate through this provision.

2.3.2

In order to ensure that any safeguarding gaps are plugged, and that offences created by section 7 and section 9 of the SVGA are a credible deterrent, police access to the barred status of an individual MUST be available immediately in real time on a 24/7 basis rather than via a slow time application to the ISA. ACPO preference would be for this information to be available via a marker or flag on the Police National Computer

2.3.3

The example has previously been cited of a uniformed police patrol checking the driver of a minibus containing children outside of office hours. That officer needs to know there and then if the driver is barred from working with children, both in order to take the necessary enforcement action, but more importantly to ensure the safety of those children by removing the barred individual from that activity. Otherwise there is a real danger that the Safeguarding Vulnerable Groups Act, as amended by the Protection of Freedoms Bill will become a "toothless tiger".

3

Review Specific Issues:

3.1

Vetting and Barring Scheme Remodelling Review.

3.1.1

Recommendation (b) – Merging of CRB and ISA.

In its submission to the Review, ACPO questioned the need for the existence of two organisations. Merger of the two should reduce costs, and improve both the efficiency and effectiveness of the combined business processes.

The interpretation of the Government Protective Marking Scheme by the ISA has resulted in difficulties in communication of information with other stakeholders including the Police Service and the CRB. The insistence that all ISA operations are conducted at CONFIDENTIAL level has proven to be problematic and at times obstructive. Both the Police Service and the CRB assess similar information to be of RESTRICTED level. ACPO therefore recommends that for operational expediency the merged organisation adopts the information security standards of the CRB rather than the ISA

3.1.2

Recommendation (c) – Scope of the VBS.

ACPO supports the view that the scheme should be aimed at those whom have the opportunity and present the greatest risk. The definition of the terms "regular" and "close contact" is critical. A number of police roles would satisfy this criterion and so the police service is again in danger of being in a position where it may have to pay the CRB/ISA for a check of its own records for its staff and officers deemed to be engaged in Regulated Activity (See 2.2 above)

3.1.3

Recommendation (e) – Automatic barring restriction.

Under Clause 66 the barring decision will not be made unless the individual is, or has been engaged in Regulated Activity, or might in the future be so engaged. ACPO is concerned as to how the ISA will be aware of whether or not someone committing an auto bar offence satisfies any of these criteria and so should be added to the lists.

3.1.4

Recommendation (h) – Portable Enhanced CRB disclosure certificates.

ACPO suggests that the revised VBS should be also incorporate the functions of non Part V Disclosure regimes such as the Notifiable Occupations Scheme which will otherwise be under pressure to expand to fill the perceived space left by the contraction of the VBS. (See also comment at 3.2.2 regarding disclosures being made based on employment sector in future as opposed to the current and more narrowly defined "Position Applied For")

3.1.5

Recommendation (i) – Retention of referrals processes.

There needs to be clarification of the provisions surrounding referrals, as if not previously engaged in Regulated Activity there is an inference that the barring decision will only be taken at the point at which an individual enters Regulated Activity, in which case the non Regulated Activity Provider referral processes leading to consideration of a discretionary bar, would be meaningless. (See also 4.2 below).

3.1.6

Recommendation (m) – Offences.

There are enforcement issues with the existing S7(1) offence insofar as there is a defence under S7(3) that effectively requires the State Body (currently the ISA) to prove that the notice of barring was received by the individual. This has proved problematic providing the opportunity for a fabricated defence, and so the offence needs to be amended so as to be made absolute, or a provision inserted such that "service of the barring notice by first class post to the subject’s last known address" is deemed to be good service for the purpose of S7(3).

The offences under S9(1) and S9(2) require that the person committing the offence knows that the individual is Barred from the relevant Regulated Activity - if there is no longer a statutory obligation to check if a person is barred (being replaced by a duty to check) then there is arguably an in-built incentive not to check the barred lists so as to preclude the commission of S9 offences.

3.2

Criminal Records Review.

3.2.1

Recommendation (1) – Scaling back of eligibility.

ACPO fully agrees with the rationale in respect of CRB checks for those less than 16 years old. In respect of the wider scaling back of eligibility, there may be a tendency for demand to create its own supply and thus encourage a shift towards non Part V disclosure regimes such as the Notifiable Occupations Scheme (NOS). The use of police common law powers does not incorporate the same tests of proportionality, relevancy, necessity and accountability as those contained within Part V. The NOS is currently subject to Home Office review, and the view of ACPO is that it too should be significantly scaled back in a similar fashion, such that

· there is no longer a presumption to disclose,

· that the list of bodies eligible for notifications is significantly reduced, and most importantly,

· that NOS disclosures are only made in cases of pressing social need;

All other employment vetting disclosures should be made via the Part V route

3.2.2

Recommendation (2) - Portable Enhanced CRB disclosure certificates.

The disclosure of other relevant police information is determined by considering the "Post Applied For" and determining the relevancy of the information in respect of that post. A more portable enhanced CRB certificate may result in more information being disclosed in order to accommodate the range of roles for which the applicant could use the certificate. This is an issue that has been highlighted by the Scottish PVG scheme whereby the "sector" is defined at a relatively high level as being "children" or "protected adults" and so police disclosures will need to be made against that broader backdrop. This is likely to result in a greater volume of information being disclosed about an individual.

3.2.3

Recommendation (4) – Certificates to be issues directly to the individual

The provisions within the Act to enable direct disclosure to the Registered Body/Employer without the knowledge of the applicant have not been widely used and arguably have at times been misused. There will however continue to be exceptional circumstances where disclosure to an employer/registered body will be necessary in order to afford immediate protection to children/vulnerable adults. It is envisaged that a redefined Notifiable Occupations Scheme would provide the necessary route in such cases of "pressing social need".

3.2.4

Recommendation (6)(d) – 60 day timescale for police information

The SLA between ACPO and the CRB already provides for target turnaround times. ACPO is concerned that if there is a presumption that there is nothing relevant to disclose if the police have not made a decision within 60 days, then relevant information could be excluded thereby increasing the risk to sector in which the applicant is intending to work/volunteer.

3.2.5

Recommendation (6)(f) – use of the PND to identify police information.

The PND is not the panacea that will facilitate the regionalisation (or nationalisation) of the police input to the Part V disclosure process. In determining disclosures of relevant police information, disclosure unit staff will frequently look beyond the information held within databases that will feed the PND. It is not unusual for the case file to be scrutinised and officers’ notebooks examined. If required the OIC or SIO will be contacted in person and asked to provide further details. This would be cumbersome and convoluted if the decision maker was remote from those providing the information on which the decision is made.

There may be some legal liability issues to be overcome, for example who would bear the liability for the disclosure? - The Chief Officer making the disclosure or the Chief Officer upon whose information the disclosure is based?

3.2.6

Recommendation (9) – introduction of "Basic" level checks.

ACPO supports this and suggests that basic checks should be made available to a wider arena for the purposes of employment vetting.

It would appear that there will in fact be four levels of check available:–

· Basic,

· Standard,

· Enhanced, and

· Enhanced + Barred List Check

The Bill makes it clear that only those engaging in Regulated Activity will be subject to the fourth and highest level of checking. There is a perception (articulated by the NSPCC) that this creates a safeguarding gap as it affords the opportunity for a barred individual to work or volunteer in a role that whilst not being Regulated Activity nonetheless affords access to children. ACPO does not agree that this creates a safeguarding gap as applicants for such roles will still be the subject of an enhanced CRB certificate which will disclose much of the information upon which any barring decision would have been taken thereby providing sufficient background to enable the employer/voluntary organisation to make an informed decision regarding the appointment of such an individual.

4

Other Issues.

4.1

The new definition of regulated activity excludes many people who are supervised whilst working with children and those working with 16-17 year olds in education, faith and sports settings. As the current school leaving age is 16 this would seem appropriate as 16 and 17 year olds are at liberty to undertake full time employment, thereby being in an environment in which they will not be subject to any safeguarding measures anyway. However the DfE plans to increase the school leaving age to 18 from 2013 which would arguably lead to an inconsistency of approach and the possible creation of a risk that potential abusers may gain and exploit positions of trust in respect of 16 and 17 year olds within an educational setting be it a school, sixth form college or other establishment.

4.2

Under Clause 66 individuals can only be considered for being placed on the barred lists if they are, have been, or might in the future be engaged in Regulated Activity. There is logic in this approach insofar as there seems little point in the State Body expending effort and resources in considering the barring of someone that has not, and never will be engaged in Regulated Activity. However this does then raise the question as to the operation of the Auto-bar process and the referral processes. Furthermore there may be individuals who currently feature on the barred lists as a result of the ISA’s structured judgement process and who under the revised provisions will need to be removed – this may present a serious reputational risk for all stakeholders involved in the safeguarding arena.

4.3

Clause 80 of the Bill enables CRB checks to be portable: If an applicant subscribes to updating arrangements, employers will be able to check online to see if new information has been generated since the CRB certificate was issued and thus application should be made for an updated certificate. This process will need to be carefully modelled to ensure that minor and irrelevant changes in the individual’s history, or indeed in the police non conviction information, do not result in changes to the online status and the consequent needless application for another certificate

4.4

ACPO is conscious that the scope of both reviews was limited to the Vetting and Barring Scheme as defined by the Safeguarding Vulnerable Groups Act 2006; and the Criminal Records Bureau disclosure regime provided under Part V of the Police Act 1997. There are however other disclosure regimes in operation such as, the Notifiable Occupations Scheme, CAFCASS, and the demands of the professional bodies such as the General Medical Council, the Nursing and Midwifery Council, the General Teaching Council etc to require police information held in respect of individuals. ACPO would highlight that these schemes do not appear to be subject to the same degree of regulation as the VBS and CRB disclosures and would urge that their continued existence is urgently considered. The inferred powers of professional bodies to demand sensitive personal information without the consent of the individual must be drastically curtailed. Otherwise there is a danger that in the face of the perceived constriction of the VBS and CRB regimes, demand will seek out an alternative supply through these unregulated channels.

4.5

ACPO is aware that the Notifiable Occupations Scheme, which relies on common law powers, and has its roots in the 1950s when there were no structured disclosure regimes in existence; is subject to a separate Home Office review. ACPO would wish to see a significant constriction of this scheme such that it becomes the channel to facilitate "urgent pressing social need" disclosures (akin to the Police Act s113B(5) disclosures) rather than the current, and entirely disproportionate, presumption to disclose based solely upon an individual’s occupation and/or membership of a professional body.

April 2011