Protection of Vulnerable Groups and Disclosure of Criminal Information: consultation report

Part 2: Discussion Of The Key Issues

There were a number of related issues brought out in the consultation responses which are highlighted in this part of the report along with further commentary on the detail of the proposals. It is hoped this will help to clarify and allay concerns raised by some respondents.

Relationship between the PVG Review, the Age of Criminal Responsibility (Scotland) Bill and the Management of Offenders (Scotland) Bill

A number of respondents commented that the PVG Review proposals, alongside the proposed amendments in the above Bills, will load further complexity on an already complex system. Similarly, they expressed frustration that these interlinked legislative changes are being undertaken in a piecemeal manner, and instead stated that there should be a holistic review of the entire disclosure system.

On the surface, the existence of three separate related bills or future bills ^[3] might suggest that silo‑working is an issue. This is not accurate; Scottish Government policy officials from Justice, Youth Justice and Disclosure Scotland have worked closely together in all aspects of amending the disclosure regime in pursuit of a broader vision. The current proposals in the Management of Offenders (Scotland) Bill will significantly shorten disclosure periods for almost all sentences. This will have a positive impact on disclosure users whether they be adults or children as convictions will be spent sooner, meaning that minor convictions are less likely to be disclosed on the basic disclosure. The reforms will also mean that applicants for higher level disclosures will be able to make the application to a sheriff sooner in those cases where the individual has a conviction for an offence included on schedule 8B.

The Age of Criminal Responsibility (Scotland) Bill proposes to increase that age from eight to 12, meaning that there can be no convictions (in practical terms this refers to offence grounds being found proved by a Children’s Hearing) recorded before that. This builds on the change made in the Criminal Justice and Licensing (Scotland) Act 2010 which ended the possibility of children under 12 being prosecuted for offending behaviour. Disclosure of any behaviour from before the age of criminal responsibility would only be possible after an independent review of the police decision to include it, and where the disclosure subject has the opportunity to respond to the police information before it is disclosed to another party, such as an employer.

The policy ideas proposed in the consultation are fully in keeping with the wider Government strategy to improve the disclosure system and the justice system generally for both children and adults. They must be seen in this context. The review contains proposals that, if enacted, would represent a transformational improvement in the position of young people and adults. It also offers an opportunity to take further steps on the journey of:

• improving, and simplifying the disclosure regime for all; and
• providing positive impacts for those with convictions whilst balancing public protection.

Taken together, these changes show how this Government has embarked on a steady progression of reforms that have sought to engage the public, and key professional concerns, at all stages. We are committed to policies that balance public protection with the right to forget past offences so that everyone in Scotland has the possibility of contributing to the wellbeing and development of our nation. Research evidence shows clearly that continually having to re-live one’s offending past damages the chances of some people being able to do that.

Other Relevant Information ( ORI) ^[4]

Some commentators expressed concern that the consultation proposals for reforming how ORI is generated were too focused on revising the existing process rather than taking a more fundamental look at the whole practice.

Respondents acknowledged that ORI plays an important role in safeguarding and is used only sparsely as a proportion of all disclosures. However, concerns remained over the fairness of having the possibility of ORI and the perception of lack of transparency. It is felt that this would make it difficult for individuals to predict whether there will be ORI on a disclosure and what they can do about it if they think it unfair.

Under present arrangements, if a police force holds information about a disclosure applicant the chief officer must decide if they reasonably believe it to be relevant to the purpose of the disclosure requested, and whether it ought to be disclosed. It should be noted that Scottish Ministers are confident that Police Scotland and other UK police forces exercise this function with appropriate care. As noted previously, only a tiny minority of enhanced disclosure and PVG scheme record disclosures contain this information. The ability to include this information on a disclosure is a very significant part of the measures (in the Police Act 1997) that followed the Dunblane Primary School murders. It is therefore not the intention of Scottish Ministers to erode this vital power which can lead to barring under PVG as well as disclosure to an employer or prospective employer.

However, the practice in Scotland concerning ORI differs from the rest of the UK. In England and Wales police forces work to Home Office guidance governing ORI and the law provides chief officers with a power to seek representations from applicants. It also affords applicants the right to apply for an independent review of the ORI to have it changed or removed before disclosure. As can be seen from the proposals in the consultation, Scottish Ministers would like to alter the point at which the individual becomes aware of the police intention to disclose ORI in Scotland. They would like to provide the individual with the opportunity to challenge any proposed ORI and have it removed or adapted before it is disclosed to a prospective employer. As such, we consider it necessary to introduce the additional steps as proposed in the consultation.

The proposal that an applicant would be able to submit representations and appeal decisions through an independent reviewer before any ORI is included on a disclosure certificate will improve fairness and transparency; this was welcomed by commentators. The new process will also be very clearly understandable to the public because we will issue statutory guidance.

It was noted that to ensure effectiveness of the proposals, the rights and opportunities to request a review must be clearly communicated to individuals along with the provision of appropriate supporting information. It was also raised that the process should be easy to understand, as simple as possible, and set timescales to avoid any unnecessary delays and the resulting impact on opportunities. We welcome these comments which aim to ensure individuals are well informed and well supported.

Disclosure Provisions for 12-17 year olds

Some responses explored the impact of the disclosure system on children and young people. Certain respondents felt that the current disclosure system does not fit coherently alongside the welfare-based Children’s Hearing System and the ‘Whole System Approach’. It was noted that the disclosure system should take account of the differences between adult and childhood offending as well as the developmental needs of children and adverse childhood experiences. As such, the system should allow for consideration of the context in which offending behaviour occurs.

The consultation contained proposals aimed specifically at improving the life chances of children and young people who have had interactions with the justice system as a result of past offending behaviour, these were:

• offending behaviour from childhood would only be disclosed on enhanced and PVG level disclosures following the individual having an opportunity to make representations, and ratification by an independent reviewer;
• the continued differentiation between periods of disclosure for spent convictions, for convictions accrued at age 18 or over, and under the age of 18;
• the alternative options presented for having spent convictions removed from higher level certificates including the options of having the inclusion of such convictions considered by an independent reviewer or Disclosure Scotland Protection Services through an internal review process.

On the area of what is disclosed for 12-17 year old applicants, or later disclosed about conduct dating from that period of life, some respondents explored the impact of the disclosure system on children and young people.

The major theme coming through was that a change is certainly needed. Although there were calls for a wider reform to the system than those proposed, there were many comments which generally favoured the more radical of the three consultation options, namely option 2. This proposed no disclosure at all of criminal conduct from this age range unless that disclosure took place in the form of police information and only after an independent reviewer had considered the information and approved its disclosure. Part of this process would be to gather and fully consider the views of the person about whom the disclosure would be made.

The feeling was that this would help simplify the system for young people, bring greater certainty about what was likely to be disclosed and align the disclosure system better with the principle that the welfare of the child is the paramount consideration. This has been noted as lacking in the current system. Some commentators felt that even this use of ORI was not ideal but recognised that it was the best option should the state retain the ability to disclose harmful behaviour from this age range. The issue that care-experienced people are much more likely to have adverse contact with police than children who are not looked after by the state was highlighted and it was noted that care-experienced people often report difficulties when making applications for disclosure. They do not feel informed about the impact of convictions accrued while ‘in care’ on future opportunities. This is a clear strand that we should bear in mind when developing legislation and guidance.

The need for the disclosure system to take account of the differences between adult and childhood offending, as well as the developmental needs of children and adverse childhood experiences, was a key theme coming from commentators in this area. The need to move away from a complex system was also emphasised. We recognise this and it is reflected in the proposals in the consultation which aim to afford different provisions to positively impact children and young people.

Disclosure checks for under 16s

There was significant support for placing a minimum age on obtaining a criminal record check, with 73% of those who responded to this proposal supporting it. However some respondents raised concerns.

The approach taken to issuing disclosure checks to children in the rest of the United Kingdom is that these are not allowed under age 16. As recognised previously in this report, it is generally right and proportionate to treat children differently from adults and to protect them from unnecessary stigma related to disclosure for roles they may occupy when under the school leaving age. However there are exceptions envisaged, where a disclosure check on a young person may be in the public interest. An example might be when a foster family has a 15 year old child and a foster child is coming to live with them, or where a 15 year old is applying for work or college places which require a disclosure on anticipation of them turning 16.

In addition, the appropriateness of children aged under 16 doing unsupervised regulated work needs to be considered. Currently an individual can only apply for PVG scheme membership if they are doing regulated work. If under 16s are unsuitable to do unsupervised regulated work, then they are not eligible for PVG scheme membership. There are two types of regulated work – work with children and work with protected adults. Regulated work is usually jobs including:

• caring responsibilities;
• teaching or supervising children and/or protected adults;
• providing personal services to children and/or protected adults;
• having unsupervised contact with children and/or protected adults.

It can also apply to certain positions of trust within organisations, even where the role doesn't involve any direct contact with children or protected adults. Examples of this include:

• membership of certain council committees;
• trustees of charities focused on children;
• trustees of charities focused on protected adults.

Simplifying the disclosure system by reducing the number of disclosure products

As noted in Part 1 a number of respondents, particularly charities and support and advocacy groups for youth justice and people with convictions, expressed that reducing the number of products available alone will not simplify the disclosure system.

Reducing the number of disclosure products available is just one of the ways Scottish Ministers propose to simplify the system. This proposal, along with a host of other interlinked options, would fundamentally overhaul and re-shape the disclosure system to the benefit of stakeholders. It is important to note that the proposals contained within the consultation, including the proposal to reduce the number of disclosure products, were directly informed by extensive pre-consultation engagement carried out with a broad range of stakeholders. Simplification of the disclosure system coupled with the commitment by Disclosure Scotland to increase and improve the guidance available will be a positive, practical step that addresses gaps in understanding among stakeholders.

Support was expressed for Disclosure Scotland’s commitment to provide increased guidance. It was stressed that both guidance and training is required, and that this should be accessible and in a number of formats, including materials suitable for children and young people. Additionally, support should be individualised and available over the phone or face-to-face. It was suggested that establishing an independent body to provide support would be welcome. It was also mentioned that information should be available at the point of an individual being charged or when accepting referral grounds at a Children’s Hearing. It was also felt that disclosures should be made more meaningful by labelling convictions as spent or unspent.

As touched on above and as detailed in the consultation, Disclosure Scotland has made a commitment to providing more guidance and training. We are continually engaging with stakeholders to develop guidance and training that meets user needs and welcome respondents’ views on how this can be achieved.

In recent years we have taken proactive steps to address gaps in stakeholder knowledge through workshops and training sessions delivered by the Disclosure Scotland Customer Engagement Team to a broad range of stakeholders throughout Scotland.

Disclosure Scotland is also a leading member of the ‘ Scotland Works for You’ alliance consisting of representatives from sport, academia, and public and private bodies. Together, the group has created online guidance which aims to support people with convictions by suggesting how to prepare for employment and how to discuss previous convictions. The guidance also supports employers on topics such as how to consider people with convictions for employment and how to interpret information provided on disclosure certificates.

This commitment to providing improved resources to support stakeholders is one that will continue as we transition to a refreshed disclosure system and beyond.

Standard conditions on individuals under consideration for listing

An important principle of the European Convention on Human Rights is that the outcome of a process should not precede the process itself. That means it is not possible to bar an individual temporarily before carrying out the consideration for barring. However over the years of the PVG Scheme, the barring service in Disclosure Scotland has encountered cases where very serious and harmful conduct has been alleged and the individual continues to seek and do all types of regulated work whilst the formal process to consider that conduct is ongoing. For that reason we consulted on limited powers that Scottish Ministers could exercise to restrict or limit the types or circumstances of work with vulnerable groups an individual could do during the consideration for listing (barring), short of imposing a provisional bar.

There was strong support for giving Scottish Ministers new powers to impose such conditions, with 94% of those who responded to this proposal supporting it. Respondents welcomed the additional level of protection this would provide to ensure children and the vulnerable are protected from harm. Organisations also stated it would help them better manage risk on a case-by-case basis. However some concerns or issues were raised in a number of responses. These included:

• What guidance would be made available in respect of the decision-making to ensure transparency?
• What would the parameters be for imposing conditions? There was a clear emphasis that it should be rare and reserved for only the most serious cases
• What the conditions would comprise?
• The impact it would have on small to medium organisations, particularly the voluntary sector. There were concerns about bureaucracy, costs and criminalising volunteers, which could drive people out of volunteering.
• It may not be possible to effectively enforce, monitor and supervise when there is no individual or organisation to oversee the conditions.
• What level of support and guidance would be given to organisations and individuals who have to work to standard conditions?

We welcome the broad support received for this proposal. It is recognised that conditions should only be imposed in the most serious of cases and care must be taken to ensure proportionality and fair use of such powers. This area is complex and work will be required in collaboration with a wide range of stakeholders to develop a framework which is practical and is underpinned by principles of proportionality and safeguarding.

Protected Roles

The other key point covered in section 3 of the consultation paper related to the proposal to replace regulated work with protected roles. Consultation responses suggest there is wide support for the proposal. However, the scope of work in a newly-designed protected role was raised by many respondents, emphasising the need for clarity about its extent especially if it was to be supported by new criminal offences. The reliance on simply a job title might also be unhelpful, and respondents said that factors relating to what individuals were doing on a day-to-day basis should also inform the decision about whether work was in a protected role. Requests were made for further discussion between the Scottish Government and organisations before final decisions are taken. We intend to do that and proposals for the replacement of regulated work with a system that allows employers and individuals greater clarity will be forthcoming for further discussion.

Digital Services

While there was very broad support for moving Disclosure Scotland’s services online, many respondents mentioned the need to retain other methods of delivery and payments. Disclosure Scotland will ensure that there will be alternatives available to those who can’t or won’t use online services. These alternatives are essential if the new membership scheme is to be inclusive, given the diversity of Scotland’s people and the organisations with whom they work and / or volunteer.