Multi-Agency Public Protection Arrangements (MAPPA): national guidance

3. The Duty to Co-operate

Statutory Basis

3.1 Section 10 (3) of the Management of Offenders etc. (Scotland) Act 2005 states 'the Responsible Authorities must act in co-operation with such persons as the Scottish Ministers may, by order made by statutory instrument, specify'. This is known as the Duty to Co-operate (DTC).

3.2 The 2005 Act, Section 1 (2) (a) states 'to co-operate may, without prejudice to the generality of that expression, include to exchange information'. The DTC is reciprocal, requiring two-way co-operation between Responsible Authorities and DTC agencies.

3.3 The DTC agencies in Scotland are listed within The Management of Offenders etc. (Scotland) Act 2005 (Specification of Persons) Order 2007.

3.4 As Scottish Ministers have prescribed persons or bodies with a DTC in the 2007 order, the duty can only be extended or removed by amending that order.

Health Boards and Special Health Boards

3.5 Health boards and the State Hospital are Responsible Authorities (within the meaning of section 10 of the 2005 Act) in relation to the establishment, implementation and review of the assessment and management of restricted patients who meet the criteria in section 10(1) of the 2005 Act.

3.6 In addition to this Health Boards and Special Health Boards have a duty to co-operate with other agencies for all individuals subject to MAPPA.

Social Security Scotland

3.7 From 8 January 2021, Social Security Scotland became a DTC agency. The overall aim is to enable Social Security Scotland to assist individuals in the community who are subject to MAPPA and are applying for the payment of benefits. It will also allow Social Security Scotland to alert Responsible Authorities to any change of relevant circumstances, such as address for individuals in the community who are subject to MAPPA.

Registered Social Landlords (RSLs)

3.8 Registered Social Landlords (RSLs) are DTC agencies and as such they have to co-operate with the Responsible Authorities. RSLs do not themselves have responsibility for assessing and managing risk. The key housing contacts in each RSL is the Link Officer. The role of each RSL is to contribute to the Responsible Authorities management of risk by:

• exchanging information on housing with the Responsible Authorities;
• identifying and allocating housing that has been assessed as suitable by the Responsible Authorities;
• liaising with the Responsible Authorities on their on-going management and monitoring of the risks the individual may pose; and
• having in place arrangements with the Sex Offender Liaison Officer (SOLO) and the other Responsible Authorities to deal with situations where a property is no longer suitable and/or the individual's safety is at risk, or if there are behaviour changes that suggest that the individual poses a risk to the community.

Electronic Monitoring Service Providers

3.9 Electronic monitoring service providers in Scotland are subject to the DTC in acknowledgement of the important service they can provide as part of a high-risk management plan.

3.10 In practical terms this may involve:

• working with authorities/agencies to raise awareness of electronic monitoring;
• providing a point of contact for advice to the Responsible Authorities on the available technology and raising awareness of that, explaining what it can and cannot do;
• providing technical advice on proposed orders/licences; and
• attendance by a member of the service provider's management team at MAPPA or MAPPP meetings when the circumstances of a particular case deem it appropriate for them to do so.

3.11 It is recognised that electronic monitoring has a part to play in supporting and adding robustness to an individual's licence which may contain a number of specific conditions. The service provider should work with Responsible Authorities to ensure that appropriate protocols are put in place to share information about individuals subject to MAPPA. These protocols will shape communication with partner agencies and ensure that information on any failure by the individual to comply will be passed to appropriate agencies within an agreed time scale. Any protocols should be drawn up collaboratively and the service provider's role includes facilitating discussions to ensure any such protocols are put in place for all individuals.

Scottish Children's Reporter Administration (SCRA) and the role of the Principal Reporter

Scottish Children's Reporter Administration (SCRA)

3.12 The SCRA is subject to DTC. The Principal Reporter has a statutory role in relation to the Children's Hearings System.

3.13 The role relates predominantly to two groups of children:

• children who are the subject of a current referral to the reporter (generally where an agency or individual has provided information to the reporter because the person considers that the child is in need of protection, guidance, treatment or control and that it might be necessary for a compulsory supervision order to be made in respect of the child); and
• children who are already the subject of a compulsory supervision order.

3.14 The Principal Reporter delegates to individual children's reporters their statutory duties relating to these children. The role of SCRA is to support the Principal Reporter in the exercise of their statutory functions. SCRA is a national body and children's casework is undertaken through a structure of nine localities across the country, each locality being managed by two or more locality reporter managers and aligned with a number of local authorities.

3.15 Children are referred to the reporter for a variety of reasons, though always because the agency or individual considers that it might be necessary for a compulsory supervision order to be made in respect of the child. In exceptional circumstances it might be possible for the reporter to treat a child as referred where a specific referral is not received. In considering the referral of any child, the reporter must determine whether he considers that a 'section 67 ground' applies and, if so, whether he considers that a compulsory supervision order is necessary. The grounds set out in Section 67 of the Children's Hearings (Scotland) Act 2011 cover a wide range of circumstances relating to the child. They include circumstances giving rise to concern about the welfare of the child from other people's behaviour or from the child's behaviour. The reporter has a statutory role to:

• make further investigations relating to the child as the reporter considers necessary;
• refer the child to a Children's Hearing if the reporter considers that a section 67 ground applies and that a compulsory supervision order is necessary;
• if arranging a Hearing, draft a statement of grounds setting out which section 67 ground or grounds the reporter believes applies to the child and the facts supporting this;
• arrange any Children's Hearing, ensuring that relevant written material is provided to the child (if able to understand the material), the relevant persons in relation to the child (generally parents or carers) and the members of the Children's Hearing;
• keep a record of who attends the Children's Hearing and the decisions of the Hearing;
• appear in the sheriff court in any proof Hearing in relation to a disputed statement of grounds; and
• notify certain parties of the outcome of the referral of the child.

3.16 In relation to children who are the subject of a compulsory supervision order, the Principal Reporter has a statutory role to:

• arrange any Children's Hearing to review the child's compulsory supervision order, ensuring that relevant written material is provided to the child (if able to understand the material), the relevant persons in relation to the child (generally parents or carers) and the members of the Children's Hearing;
• keep a record of who attends the Children's Hearing and the decisions of the Hearing; and
• notify certain parties of the outcome of that review Hearing.

3.17 Where a further referral is received in relation to a child who is already subject to a compulsory supervision order, the reporter must determine whether they consider that a section 67 ground applies. If so, the reporter will refer the child to a Hearing where the reporter is of the view that the child's welfare requires either that a specific new statement of grounds be considered by the Hearing or that the compulsory supervision order be varied.

3.18 It is important to note that where a child is the subject of a compulsory supervision order, it is the local authority named in that order that has the on-going statutory responsibility to implement the order and safeguard and promote the child's welfare.

3.19 Although the Principal Reporter has a statutory role in relation to a Children's Hearing, the Children's Hearing – which is a Tribunal is independent of the Principal Reporter. The Children's hearing has to decide whether a compulsory supervision order is necessary for the protection, guidance, treatment or control of the child. The Hearing must also decide what measures to include in any order.

3.20 Under the Antisocial Behaviour etc. (Scotland) Act 2004 the Principal Reporter also has a statutory role in relation to applying to the Sheriff Court for a parenting order.

3.21 There are two groups of children in relation to whom the Principal Reporter is likely to have contact with MAPPA:

• a child who has contact with an adult offender who is known to MAPPA; and
• a child to whom section Section 10 (1) of the Management of Offenders etc. (Scotland) Act 2005 applies as a result of that child being dealt with through the criminal courts. For the avoidance of doubt, where an offence of the type mentioned in section 10(1) is dealt with through a Children's Hearing and either accepted or established after evidence, the MAPPA arrangements do not apply.

3.22 Note however that the Principal Reporter will only be involved if the child is one of the children identified above, in relation to whom the Principal Reporter has a statutory role.

3.23 In these cases, the Principal Reporter may:

• request information from one or more of the Responsible Authorities as part of the Principal Reporter's investigation into the circumstances of a child;
• provide information to one or more of the Responsible Authorities as part of that investigation;
• request information from one or more of the Responsible Authorities when arranging a Children's Hearing to review a child's compulsory supervision order;
• provide information to one or more of the Responsible Authorities regarding the decision made by the reporter following a referral or regarding the decision made by any Children's Hearing; and
• request information (and possibly call a person as a witness) from one or more of the Responsible Authorities in the course of a Hearing of evidence at court. Such a Hearing may be necessary where a child or relevant person dispute the statement of grounds prepared by the reporter or dispute other material facts on which the Hearing's decision turned.

3.24 Given the nature of the Principal Reporter's involvement in MAPPA cases, there are likely to be limited circumstances in which a locality reporter manager (or a member of their team) will attend a MAPPA meeting in relation to a particular case.

Department for Work and Pensions (DWP)

3.25 Albeit that the DWP is not a DTC agency, The Management of Offenders etc. (Scotland) Act 2005 (Disclosure of Information) Order 2010 sets out the conditions under which information may be disclosed between the Secretary of State for Work and Pensions (Department for Work and Pensions), the Responsible Authorities and duty to co-operate agencies in the MAPPA.

Memorandum of Understanding (MoU)

Statutory Basis

3.26 The DTC is underpinned by a Memorandum of Understanding (MoU) prepared by the Responsible Authorities and the DTC agencies in each local authority area, and other relevant DTC agencies (including for example Social Security Scotland), in accordance with section 10(5) of the 2005 Act.

Purpose

3.27 The purpose of the MoU is to enable the practicalities of co-operation to be agreed locally, this will include ensuring that there is a clear and agreed understanding by all involved of their roles and responsibilities. This allows those involved to take account of the variations in the structure and relationships between all the agencies concerned, which may differ from one part of the country to another.

3.28 As part of the DTC, Responsible Authorities and DTC agencies should carefully consider wording of any MoU and any associated documentation so that it takes into account those individuals whose information may require to be shared wider than the local area - for example where personal information such as health data is required to assist in assessing someone's risk when they are currently living in the community or in custody outwith that local area.

Content

3.29 The MoU drawn up by the Responsible Authorities and the DTC agencies at a local level should as a minimum cover the following:

• Statutory Basis (any legislative provision etc.);
• Principles and purposes of the DTC;
• Practicalities of co-operation;
• Disclosure of information, arrangements and responsibilities;
• Information sharing (this may extend to other local authorities and health boards, where necessary and link into ISA);
• Dispute Resolution;
• Annual Report (including review arrangements);
• Media handling strategy;
• Audit, Review and Quality Assurance; and
• Status of the MoU including whom this MoU applies to.

3.30 The MoU should describe the ways in which the Responsible Authorities and DTC agencies agree to co-operate, however, the specific activities involved in co-operation will be determined by the specific circumstances of each case. The type of activities this will involve can be broken down into four areas:

• Providing a point of contact for other Responsible Authorities and DTC agencies; while much of the formal business of co-operation will be conducted at MAPPA Level 2 or Level 3 meetings, co-operation may also entail informal contact. To enable that informal contact and to channel the more formal engagement, it is important that each Responsible Authority and DTC agency provides a single point of contact (SPOC);
• Providing general advice about the Responsible Authority's and DTC agency's roles including the type of services they provide and how they can be accessed;
• Providing specific advice about the assessment and/or the management of the risks presented by an individual; and
• Co-ordination: this key partnership function requires each Responsible Authority and DTC agency to perform its role and to carry out its responsibilities in a way which complements the work of the other Responsible Authorities and DTC agencies.

3.31 Additionally further information on partnership working can be found in Standard 4 of the Standards and Guidelines for Risk Management (RMA).

3.32 For clarification and reassurance, it may be helpful to refer at each stage to the statutory definition of the duty and the principles outlined in this chapter.

3.33 A model MoU is provided at Annex 4 of this guidance.

Supporting documentation

3.34 The MoU should be supported by information sharing principles and if local areas feel necessary through a formal Information Sharing Agreement (ISA).

3.35 As a minimum any information sharing principles must cover the general data protection principles:

• Lawfulness, fairness and transparency - The processing of data must be lawful, fair and transparent
• Purpose limitation - The purposes for processing of data must be specified, explicit and legitimate
• Data minimisation - Personal data must be adequate, relevant and not excessive
• Accuracy - Personal data must be accurate and kept up to date
• Storage limitation - Personal data to be kept no longer than is necessary
• Integrity and confidentiality (security) - Personal data to be processed in a secure manner
• Accountability - The data controller takes responsibility for what is done with the personal data and how that complies with the other principles

3.36 In practice this will ensure all those signed up to any MoU or ISA have confirmed that

• All parties and relevant staff are clear on what basis and to whom they can share personal information taking cognisance of relevant legislation, this can include across different local authority and health board areas
• All parties have clear policies and procedures which cover the secure transfer, retention and destruction of personal information
• Only the minimum personal information necessary is shared
• Clear procedures for dispute resolution and complaints
• Clear procedures for public information requests (including FoI, Subject Access Requests)
• Clear process including escalation for any breaches
• Regular audit and review of policies and procedures

3.37 Guidance on the Data Protection Act 2018 including processing data for law enforcement purposes can be found on the Information Commissioner's Office website (ICO - DPA). Further detail on general information sharing can also be found at Chapter 12 of this guidance

3.38 Where an Information Sharing Agreement (ISA) is to be drawn up, this should as a minimum include the following:

• Introduction
• Definitions
  • Examples: Data Subject; Data Controller; Third Party
• Basis of Standards/Agreement
  • Purpose of document
  • Purpose for sharing the personal information;
  • Relationship between the agencies/organisations/parties
  • Legal basis for sharing of personal information
  • Onward sharing of personal information
  • Regulatory compliance
    • The Data Protection Act 2018 (DPA) together with the UK GDPR, requires that Data Controllers have certain duties, which include compliance with the seven data protection principles (including Accountability) as set out in Article 5(1) of UK GDPR (ICO guidance). The processing of data for law enforcement purposes is covered by Part 3 of the DPA.
    • Human Rights Act 1998 - Disclosure of personal information will be conducted within the legal framework of the Human Rights Act 1998 (HRA). The HRA gives further effect in domestic law to Articles of the European Convention on Human Rights (ECHR). The Act requires all domestic law to be compatible with the Convention Articles and places a legal obligation on all public authorities to act in a manner compatible with the Convention.
    • Common law duty of confidence - Disclosure of information containing personal information will be conducted in compliance with the common law duty of confidence. For the purposes of information sharing relating to MAPPA, the duty of confidence falls within common law as opposed to statutory law and derives from cases considered by the courts. There are generally three categories of exception to the duty of confidence, where:
      • there is a legal duty to disclose;
      • there is an overriding duty to the public; and/or
      • the individual to whom the personal information relates consented.
    • Retention of personal information
    • Privacy Notice
• Managing the Agreement
  • Management Structure
  • Dispute Resolution
  • Review
  • Breaches
• Information sharing procedures
  • Overview
  • Named agencies sharing the personal information under the ISA
  • Accountability (see 7^th information sharing principle)
  • Categories of personal information to be shared
  • Sharing process – how this will work in practice
  • Information security – including Government security classifications
  • Electronic storage
  • Email
  • Hardcopy
  • Retention and Destruction
• Public information requests
  • Data Protection Act 2018 (UK GDPR requirement) – Subject Access Requests (SAR)
  • Freedom of Information (Scotland) Act 2002 – Information Requests (FoIs)
  • Complaints
• Signatories to the Agreement

Non DTC agencies

3.39 There is no legislative requirement to involve other agencies which are not DTC agencies, however, the Responsible Authorities should consider whether the involvement of other agencies is necessary for the effective operation of MAPPA. This is particularly important with Third Sector providers and agencies supporting the victim(s) especially where the offence involved domestic abuse, stalking or sexual offending.

3.40 While the exchange of information with non-MAPPA agencies has to be considered on a case by case basis, formal agreements based on the seven Data Protection principles should be in place, in advance if possible of information being shared. Such co-operation must be compatible with the exercise by those agencies of their statutory functions. All agreements should pay particular attention to ensuring the safety and security of the personal information shared through being cognisant of legislative requirements including the Data Protection Act 2018. Further detail on general information sharing can be found at Chapter 12 of this guidance.

Third Sector Services

3.41 Whilst Third Sector organisations do not have a duty-to-co-operate, the Responsible Authorities can commission services from the third sector to support, complement and enhance their own provision.

3.42 Third Sector organisations can be contracted to deliver a broad range of activity, which can include parts of statutory services (for example – intensive support packages, bail supervision, group work programmes). Third Sector services can also deliver non-statutory services which help an individual address offending behaviour and attitudes as well as related issues (for example – voluntary throughcare, supported tenancies); and broader services which aim to improve individuals' wider circumstances (for example – housing, health, employment) – all of which can have an effect on the individual's circumstances, behaviour and risk.

3.43 The range of services that are provided to individuals that pose risks may include, but are not limited to:

• Intensive support and monitoring
• Residential facilities
• Supported flats and tenancies
• Bail supervision
• Services related to alcohol and drug misuse
• Group work programmes
• Voluntary throughcare
• Employability support services

3.44 Through the provision of such services, Third Sector organisations can in some circumstances be in a key position to observe and engage with an individual, and by doing so may possess information that is pertinent to the MAPPA process. By providing key information, they can assist the statutory services in their assessment, monitoring and supervisory roles. To facilitate the appropriate and secure provision of such information which ensures the effective delivery of the MAPPA process whilst reflecting the role and responsibilities of Third Sector services, it would benefit all parties to have agreed information sharing principles and if required an information sharing agreement (ISA). By the use of agreed information sharing principles and/or an ISA this ensures Third Sector organisations are also in receipt of the latest pertinent information enabling them to report relevant issues to Responsible Authorities.