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Pre-Consultation Consideration of Determination Procedures

Introduction

54. Central components of the vetting and barring scheme are the lists of individuals unsuitable to undertake regulated work with children and protected adults provided for under sections 15 and 16 of the Bill. It is through these lists that people who have been deemed unsuitable from undertaking regulated work with vulnerable groups are prevented from accessing children and protected adults through their employment or volunteering activity.

55. Under section 39(1) (c) of the Bill, Ministers may make regulations about determination procedures for inclusion on either or both lists. Discussion of the key issues related to the determination procedures is separated into:

• the current situation;
• the effect of the Bill;
• the relevance of information to regulated work;
• where the bar for listing should be set;
• the processes used for barring decision-making.

Current Situation

56. In relation to vetting, under current arrangements, Disclosure Scotland compiles information from the criminal histories of applicants and discloses them to the applicant and prospective employer so that employers can form a judgment about the suitability of the individual. Non-conviction information can be disclosed at the discretion of the Chief Constable. For example, although Ian Huntley did not have a conviction against his name, there was considerable police intelligence which indicated his unsuitability for a childcare position.

57. Over the life of Disclosure Scotland, 85% of disclosure certificates have contained no conviction or non-conviction information. Around 15% of enhanced disclosures have contained some information; around 5% have disclosed only conviction information, 8% only non-conviction information, and 2% have contained both conviction and
non-conviction information.

58. During the Bill's stage 1, there has been some discussion of the use of police intelligence in the disclosure process. Information that is held on the Scottish Intelligence Database ( SID) is subject to assessment by an intelligence officer using a matrix which contains evaluation of the source of the intelligence, the intelligence itself, and how it is to be handled (the 5x5x5 matrix). Additionally, all information held on SID is subject to review and weeded from the database if it is no longer deemed to be relevant.

59. All intelligence which is contained with SID has therefore been graded using the 5x5x5 matrix and is reviewed for continued relevance. If information is included on SID, then there is a separate and distinct filter which it has to pass through to be included on a Disclosure Certificate. Before intelligence is released to Disclosure Scotland, the Chief Constable has to consider it relevant to the post applied for. For example, police intelligence relating to stolen cars would not be considered relevant to a teaching post but intelligence relating to supplying drugs to children would be.

60. It is worth noting that between April 2002 and April 2006, 75,847 enhanced disclosures were issued which contained non-conviction information. There were 293 appeals (0.39%) against this information of which 137 were upheld.

61. In relation to barring, the Protection of Children (Scotland) Act created the Disqualified from Working with Children's List and procedures have been established to support Determination Panels consider whether individuals referred by organisations should be included on the list. In reaching a determination, the Panel lists an individual if satisfied as to the matters set out in section 5(5) of PoCSA - that on the balance of probabilities, a child has been harmed or placed at risk of harm and that the individual is unsuitable to work with children. The issues for consideration in reaching a determination are:

• what alleged misconduct occurred,
• the seriousness of harm or risk of harm,
• the impact on the child if known,
• the impact on any other children if known,
• any action taken by the employers or supervisors, and
• the response of the individual.

62. The Panel must be satisfied on the legality of inclusion in the list, that it supports the legitimate aim of protecting children from harm, and that it is a proportionate response. The Panel has listed around 60% of cases that have gone to it for a determination.

63. The details of individual cases considered by the Panel are confidential but a few general statements can be made about the nature of harm or risk of harm that is related to an individual's unsuitability to work with children:

• Harm has included a range of misconduct and behaviours including sexual abuse, physical abuse, inappropriate relationships betraying a position of trust or inappropriate behaviour, accessing, downloading and distributing child pornography.
• Sexual abuse is extremely serious but other forms of potential harm should not be minimised since they can also have a very damaging effect on children;
• In cases of neglect, the degree of neglect has to be considered as well as the impact on the child and the intentions of the worker;
• Whether there is a pattern of inappropriate and harmful behaviour over time or if there is a one-off incident of misconduct and the nature and degree of seriousness of that misconduct.

The Effect of the Bill

64. A major development of the new scheme is that vetting and barring are no longer disjointed functions. Under the new scheme being created within the Bill, relevant information aggregated about an individual will be passed to a Central Barring Unit which will decide whether the vetting information indicates that they are unsuitable to undertake regulated work with children and/or protected adults. Depending on the nature of the vetting information, the Central Barring Unit's decision will result in either automatic listing (for schedule 1 offences) or listing after consideration. The individual will be added to a list of people barred from work with either children, protected adults or both groups. If listing is not the outcome, the vetting information will be included in the individual's scheme record and released to the employers so that they can make a decision about the individual's suitability for the specific position applied for.

65. This offers the major advantage of a consistent and fair approach to taking decisions about people who are unsuitable, while leaving it to employers to decide whether the individual is suitable for the particular post drawing on the range of recruitment material including Safer Recruitment guidance that will issue in the Spring.

66. Under the new vetting and barring arrangements, inclusion on the lists arises through:

• Conviction for a schedule 1 offence (section 14);
• a determination to bar on consideration of:
• court referrals following conviction for non-schedule 1 offences (section 11);
• referrals from organisations, employment agencies, and employment businesses (section 10),
• the naming of an individual in an inquiry report (section 13);
• through a referral from a regulatory body (section 8),
• through the assessment of vetting information on initial application to the scheme or when new information arises (sections 12).

Information of Relevance to Regulated Work

67. As previously indicated, around 85% of disclosures contain no conviction or non-conviction information. Where there is vetting information, a distinction is to be drawn between whether it is relevant to work in the regulated workforce or not. Information will fall into three categories as demonstrated in the diagram overleaf and discussed below:

• Directly relevant: There are provisions in the Bill for automatic listing for serious offences against children and protected adults without the need for consideration,. Under section 14 of the Bill, individuals are to be listed in the children's list if they are convicted of any of the offences in schedule 1 of the Bill. They are also to be listed in the children's list if certain criteria are met, as specified by order. They are to be listed in the adults' list if certain criteria are met. Any individual with any of these offences will be barred from regulated work. Provisional estimates are that this will amount to less than 1% of relevant information.
• Irrelevant: A significant proportion of vetting information (likely to be around 60%) will be irrelevant to regulated work and can be excluded, allowing the individual's application for scheme membership to progress. Irrelevant information would include driving offences or convictions under obviously unrelated legislation such as poaching offences under the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act (2003).
• Information requiring consideration: Around 40% of vetting information is expected to be deemed relevant for the purposes of determining unsuitability to undertake regulated work with children and/or protected adults. It is around this information that the Central Barring Unit will need to focus its activity. For example, based on an anonymised disclosure, an individual has a number of different convictions for assault, possessing a Class A drug and three road traffic offences. His case would need consideration because of the mix of serious and less serious offences committed over a number of years but with the more serious offences committed several years ago, he might not be listed

68. Discussion is being undertaken at this pre-consultation stage to canvass any early views from stakeholders on the information issues relevant to consideration for determining an individual's unsuitability to work with vulnerable groups

Relevant Information

85% of Disclosures Contain no Information

The Spectrum of Options for Thresholds for Barring

69. Once relevant vetting information has been assembled, the threshold for barring is the determinant as to whether an individual is included on the list or not.

70. At its most extreme, the threshold could be very high with individuals only listed if they have been convicted of a schedule 1 offence. This would encompass, but only encompass, those convicted of serious offences against children primarily offences of a serious sexual nature, cruelty, endangering life, child pornography, encouraging prostitution and offering or supplying controlled drugs to children. Whilst this would make the vetting and barring scheme very simple and cheap to operate it would not offer the robust protections that the scheme is designed to deliver and which is expected of stakeholders, delivery partners, and parents and young people. It would not utilise intelligence of the type which would have kept the Soham murderer out of the children's workforce. It would also negate the disqualified adults list which does not have the equivalent of schedule 1 offences.

71. At the other extreme, everybody on which there is relevant information could be included on the list. Again, whilst administratively simple, it would represent an overly protectionist approach. It would remove significant numbers of people from the workforce even though they may be doing a good job and have the necessary skills, experience and attributes to make a valuable contribution despite a previous conviction. A low threshold would limit the scope for employers to make employment decisions on anybody other than people with no relevant information. A low threshold would run contrary to the principles of the rehabilitation of offenders and ignores the fact that people can make a one-off mistake which they should not be 'punished' for indefinitely.

72. It is important to stress that the threshold would not be set at either of these two polar points. They are delineated purely to set the extreme points that mark the continuum on which the actual threshold will lie.

73. In essence, the policy choice is fundamentally the extent of risk aversion which is desirable in determining unsuitability. As risk aversion increases, more people will be listed. A very cautious approach might bar from the regulated workforce all those with schedule 1 offences, other serious convictions such as assault and drugs offences, those who have a number of convictions for theft and dishonesty and individuals on whom the police disclose relevant intelligence. A less risk-averse approach would use this information to distinguish those who pose the greatest risk of harm to vulnerable groups but it may not identify all those who may go on to harm children or protected adults which might have been predicted from past behaviour.

74. It is also worth observing that there is an interaction between the degree of caution in where the barring threshold is set and the scope for employers to take decisions. For example, someone with drugs offences may well be suitable to work as a drugs counsellor or advisor or youth worker and the employer can judge their conviction information alongside other recruitment criteria.

75. The reality is that in determining whether an individual is listed, account will be taken of:

• the nature of the offence(s) with respect to seriousness and relevance to regulated work and the nature of the sentence
• the nature of any intelligence deemed relevant by the Chief Constable,
• the pattern and recency of conviction and other behaviour suggesting possible unsuitability.

76. Except for those small numbers of cases who will be barred automatically because of the seriousness of a single offence, it will be the totality of information that is relevant to reaching a decision. For example, an individual may have a number of convictions but not be barred, but a further conviction may be sufficient to lead them to being barred, when considered with existing history.

77. A further consideration is the extent to which individuals should automatically be included on both the children and adult lists. We anticipate automatic cross-listing to be limited, perhaps confined to cases of murder or serious assault. However, the Bill does provide the flexibility for inclusion on both lists after determination or consideration. If the cross-over listing bar is set low so that almost all individuals are listed on both lists, this is equivalent to double barring and defeats the purpose of having two lists. It could have the effect of restricting the right of individuals to work without adding to the protection of vulnerable groups. If the bar is set high, few people would be listed on both lists which may mean that the risk posed by an individual to vulnerable groups is not being appropriately managed. As with the overall threshold, the cross-listing threshold will be somewhere in the middle and reflect detailed criteria and consideration that are still being developed.

78. To help shed further light on where the threshold for barring might be set, an exercise is underway to review anonymised disclosure information. A workshop on 5 ^th February 2007 will take this further by engaging people with experience of the disclosure system (including countersigning officers) in simulated decision making on the nature, concentration and currency of vetting information which would reasonably expect to lead to barring. All of this will then inform the development of a model to analyse the implications and relative merits of various different thresholds for the regulated workforce. There will be further workshops to refine the model and a full consultation on thresholds taking account of the outcomes from the workshops

79. Discussion is being undertaken at this pre-consultation stage to canvass early views from stakeholders on whether they favour a broadly higher or lower threshold for barring whilst recognising that actual decision will be underpinned by clear criteria to take into account in determining whether an individual should be barred.

The Spectrum of Options onthe Processes Used for Determining Listing Decisions

80. Once vetting information is assembled and, using the threshold for barring, individual cases will be considered to determine whether or not they should lead to inclusion on the list. It is expected that the majority of decisions will be straightforward but that a significant minority will require detailed consideration. A key issue is the extent to which decisions should be based on automatic processing or subject to detailed individual scrutiny.

81. At one end of the spectrum, there could be no automatic processing with a Determination Panel assessing the vetting information for each and every individual to determine whether they may be unsuitable for either or both workforces. This would be an extremely thorough approach but would be extremely labour intensive and costly with a direct impact on the cost of scheme membership. The very high level of human intervention would slow down determinations on scheme membership. Since more caseworkers and Determination Panels would be involved in listing decisions, this could increase the risk of inconsistent decisions and as a result, the scope for appeals.

82. At the other end of the spectrum, decision-making could be based on full automatic processing. A comprehensive rules-based system would be designed and used to make all the decisions about barring. This would be speedy and low cost but would be unresponsive to anything but the most ordinary cases. The reality is that the scope for different combinations of offences and intelligence would make tight rules impossible to define for every circumstance.

83. The process likely to be adopted will lie somewhere in the middle with some level of automatic processing but with caseworker and Panel input for difficult cases which draws on guidance and judgement. In practice, cases are likely to progress through the approaches below according to their complexity..

• Rules-based - for example, a straightforward rule is that all people convicted of a schedule 1 offence are placed on the children's list;
• Guidance-based - guidance can be developed on what decision should be taken in relation to a particular offence, piece of intelligence or other information. The guidance could utilise scoring (for different offences and other variables) and weighting (to cover, for example, time since last offence);
• Judgment-based - neither rules nor guidance are relevant as the case is complicated and needs discussion and decision by a Panel.

84. The dimensions to be taken into account in determining where the right balance is struck between automatic processing and individual determination of each case are likely to be:

• The robustness of decision-making in identifying unsuitable people;
• The consistency of decision-making;
• The speed of decision-making;
• The costs of vetting determinations.

85. Regardless of the process of determination, under section 17 of the Bill, all individuals must be given the opportunity to make representation before a listing decision is made.

86. This issue will be explored further at the workshop taking place on 5 ^th February and will inform the full consultation on the determination procedures under section 39(1)(c) and the subsequent regulations. Following this workshop, there will be modelling to test the decisions taken and further workshops to build on what will have been learned. There will also be liaison with the Department for Education and Skills and the Home Office to ensure the approaches north and south of the border are broadly in line.

87. Discussion is being undertaken at this pre-consultation stage to canvass any early views from stakeholders on the extent of automatic processing as compared to detailed consideration of each and every case from the simple through to the complex.

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