THE DUTY TO CO-OPERATE
1. Section 10(4) of the Management of Offenders etc (Scotland) Act 2005 imposes a 'duty to co-operate' on agencies defined by Scottish Statutory Instrument. This Section of the Guidance:
2. The development of the duty to cooperate and the preparation of this Section of the Guidance have helpfully been informed by the relevant agencies, government departments and interest groups.
3. The purpose of the duty to co-operate is to help strengthen the MAPPA. The principal responsibility for protecting the public from sexual and violent offenders rests in the form of the responsible authorities. However, the effectiveness of public protection often depends on more than just a criminal justice response. It is well known that other agencies play an important role in helping offenders to resettle and avoid re-offending. For example, research has shown that offenders with jobs have one-third to one-half lower rates of re-offending than offenders without employment. Re-offending among offenders who have stable accommodation on release from custody is similarly lower. The important contribution other agencies can make is also highlighted in cases where offenders have mental health problems or where they pose a risk of harm to children.
4. While the professional 'starting points' and 'finishing points' of all the agencies involved in the MAPPA may be different, a formal means of co-operation is required when their responsibilities and expertise cover some of the same ground. Without co-operation we get collision - agencies unintentionally frustrating or compromising, sometimes with dangerous consequences, the work of one another. Preventing that collision and enabling joint working is essentially what the MAPPA duty to co-operate is about.
5. Enabling the co-operation of all those agencies, which work with MAPPA offenders, is therefore vital. Placing that co-operation on a statutory basis underpins the good practice that has already developed; and locates it clearly within the framework of the MAPPA. It will complement and reinforce existing arrangements which require multi-agency joint working. It will also ensure greater consistency across Scotland in the way agencies work together.
What the Duty to Co-operate Means and Involves
6. The legislation does not define the activities the duty to co-operate involves. It requires that what co-operation is to mean is determined in each area through the 'memorandum' drawn up by the Responsible Authorities with the agencies upon which the duty is imposed.
7. The duty to cooperate should be imposed only in respect of the operational, case-related functions involved in assessing and managing the risks posed by MAPPA offenders.
8. The duty to cooperate is reciprocal and requires the Responsible Authorities to co-operate with the duty to cooperate agencies and those agencies to co-operate with the Responsible Authorities in assessing and managing the risks posed by MAPPA offenders. The duty to cooperate includes the sharing of information. Guidance on the sharing of information is covered in Part 7.
9. The duty to cooperate agencies should cooperate only in so far as this is compatible with their existing statutory responsibilities. Therefore, the duty does not require the agencies on which it is imposed to do anything other than what they are already required to do. It requires them to carry out their responsibilities, where these relate to MAPPA offenders, collaboratively with the Responsible Authorities and the other duty to co-operate agencies.
10. The duty to cooperate is imposed only on those agencies identified generically by Scottish Statutory Instrument and can only be varied by Scottish Ministers. The duty can only be extended to other agencies and it can only be removed from one of the specified agencies by amending the SSI. Therefore, the Responsible Authorities cannot decide to include other agencies within the duty to co-operate arrangements or to exclude those stipulated in the SSI. The Responsible Authorities and the duty to co-operate agencies must set out the ways in which they are to co-operate in a memorandum which they must draw up together. An agency included in the SSI cannot opt out of the arrangements it is required to agree in the form of the Memorandum.
11. The purpose of the memorandum is to enable the practicalities of co-operation to be agreed locally. This makes good sense because it allows due account to be taken of the variations in the structure and relationships between all the agencies concerned, which differ, from one part of the country to another.
12. The purposes of co-operation are:
- to co-ordinate the involvement of different agencies in assessing and managing risk; and
- to enable every agency, which has a legitimate interest, to contribute as fully as its existing (statutory) role and functions require in a way that complements the work of other agencies.
13. The duty to co-operate may impact in different ways on the Responsible Authorities and duty to cooperate agencies in each CJA Area. However, the fundamental nature of the duty, as defined above, will remain the same, as will the principles upon which it is based.
Respect for role
14. Co-operation depends upon respecting the different role each agency performs and the boundaries which define it. Unless clarity about authority is maintained, responsibility and accountability will become clouded and duty to cooperate agencies may misunderstand the basis upon which they co-operate. In turn, this may cause representatives of those agencies to feel disempowered or professionally compromised - a result, which the statutory basis of the duty is explicitly designed to prevent. Without this clarity, agencies might assume that a referral of a case to either a level 2 or level 3 meeting somehow diminishes or even absolves them of any continuing responsibility, which is not the case.
15. The requirement to draw up a memorandum makes clear that the ways in which the MAPPA agencies are to co-operate is determined locally. But while the memorandum will helpfully clarify local arrangements, the precise detail of each agency's co-operation will often depend upon the particular circumstances of a case. The collaborative nature of the meeting does not fetter the discretion the representative of each agency retains, nor does it detract from the responsibility each agency retains for making its decisions and carrying them out.
Informing and influencing - not command and control - of one agency by another
16. Co-operation in the MAPPA is based on the integrity of each agency's existing statutory role and responsibilities. It must be based upon informing and influencing partners. Co-operation cannot be based on the command and control of one agency by another.
Co-ordination not Conglomeration
17. The MAPPA, and the duty to co-operate specifically, is a means of enabling different agencies to work together - the MAPPA is not a legal entity in itself but a set of administrative arrangements established to fulfil the requirements under sections 10 and 11 of the Management of Offenders etc (Scotland) Act 2005. Authority rests with each of the agencies involved. While consensus may be reached and joint action agreed, that consensus and action remain the responsibility of each agency playing its legitimate role. The MAPPA does not aggregate the responsibility and authority of the agencies involved, it clarifies the roles each agency is to play. Co-operation in the MAPPA must therefore not blur the inherent differences of approach, which characterises the purpose and professionalism of each of the agencies bound by the duty to co-operate.
Partnership Working and Primary responsibility
18. Together, the principles described above and the definition of the duty to co-operate will shape and support the partnership which will be central to the effectiveness of the MAPPA. Co-operation is most effective where agencies feel they are partners to joint working, not tools. Engaging an agency's co-operation is therefore dependent upon:
identifying that an agency has a legitimate interest or specific responsibility,
advising about how best it can become involved; and,
helping it to co-ordinate its involvement with that of other agencies.
19. Effective partnership needs strong leadership. The Responsible Authorities, as their statutory role makes clear, have the primary responsibility for establishing and maintaining the MAPPA. Its leadership of the co-operative, multi-agency assessment and management of risk will involve tasks related to the four basic functions of the MAPPA model:
- the identification of MAPPA offenders and the agencies with a specific responsibility for or a broader interest in the offender;
- information sharing to confirm that responsibility/interest and to inform risk assessment;
- the formal assessment of risk and the contribution each agency can make to the interpretation of all the relevant information about an offender; and,
- co-ordinating and revision of the plans to manage the identified risks.
20. Optimising co-operation will invariably require that a lead agency be identified. This is important so that once the risk has been assessed and the management planned, implementation is clearly led by the agency which has the primary responsibility for a case. Usually the identification of this agency will be obvious. For example, criminal justice social work will have primary responsibility for offenders released from prisons under statutory supervision. Where an offender is not subject to statutory supervision but is subject to the requirements of sex offender registration, the police generally will have primary responsibility. Where the primary responsibility may not be so clear is where an offender is neither subject to statutory supervision nor required to register as a sex offender. In those cases, the agency which is to play the largest part in managing the risk should take the lead.
21. The clarification of which agency has primary responsibility does not diminish the responsibility each agency has. Nor does it imply that the lead agency has authority over the other agencies co-operating in the management of risk and the review of the arrangements.
22. The agency which has primary responsibility may change as the nature of the risk management plan changes. For example, where a police covert operation is mounted, it is likely that the police will lead.
23. Clarifying the primary responsibility helps preserve the principles of the duty to co-operate and helps ensure that lines of accountability, which can unintentionally become blurred when several agencies work together, are also kept clear. It also assists in the transfer of cases either between areas or within an area from one agency to another when, as a consequence of a formal review, risk is lowered and the arrangements to manage risk are adjusted accordingly.
The practicalities of co-operation
24. The duty to co-operate must therefore involve:
- respect for each agency's role; respect for all the authority (and the limitations of that authority) each role entails and
- respect for the discretion in using its authority which each agency retains.
25. While co-operation can be co-ordinated through the MAPPA referral systems and by the identification of the agency with primary responsibility, co-operation will not always be plain sailing. Partnerships of the sort embodied by the effective co-operation in the MAPPA can be problematic, particularly when they involve individual offenders who present considerable challenges to the professionals concerned.
26. The memorandum the Responsible Authorities will draw up with the agencies in its area will describe the ways in which they agree to co-operate. The specific activities involved in co-operation will however be determined by the circumstances of each case. The type of activities co-operation will involve can be broken down into four areas:
(i) Providing a point of contact for other agencies: While much of the formal business of co-operation will be conducted at level 2 or level 3 (MAPPP) meetings, co-operation will also entail informal contact. To enable that informal contact and to channel the more formal engagement, it is important that each agency provides a point of contact, someone who can at least signpost the direction to take, if not help smooth the way by brokering introductions and other arrangements.
(ii) Providing general advice about an agency's role and the type of services it provides. This can helpfully involve advice about how those services can be accessed.
(iii) Providing specific advice about the assessment and/or the management of the risks a particular offender poses.
(iv) Co-ordination: this key partnership function requires each agency to perform its role and to carry out its responsibilities, in a way which at best complements the work of other agencies, or at the least does not frustrate or compromise their work.
27. What these activities are and how they can best be organised - how co-operation is achieved - can be established by adopting the three-step approach:
(i) Clarify what it is you would like an agency to do.
(ii) Ask the agency whether that falls within the scope of its role - i.e. whether it is legitimate for it to do it. If it is, then ask:
(iii) How would you do it? This will help clarify the practical information AND who within the duty to co-operate agency will be responsible for co-operating.
28. For clarification and reassurance, it may be helpful to refer at each stage to the statutory definition of the duty and the principles outlined above.
29. Clearly, one of the most important means by which co-operation is achieved is by sharing information. Detailed information and guidance on the development of protocols on information sharing is contained in Part 7 of the Guidance.
30. The memorandum to be drawn up by the responsible authorities and the duty to cooperate agencies at local level should at a minimum cover the following areas:
- Legislative provision
- Principles and purposes of the duty to cooperate
- Agencies to which the Memorandum applies
- Roles of agencies involved
- Local protocol(s) on sharing information
- Definitions of terms agreed in the Concordat
- Media handling strategy
- Disclosure arrangements and responsibilities
- Annual report review arrangements
A model Memorandum is provided in the Annex attached.