Chapter 3: Referrals and listing
95. This chapter considers a range of issues around the processes leading to an individual being added to the children's list, the adults' list or both lists. Inclusion in the list(s) means that an individual is barred from working in the relevant regulated workforce.
96. Other than on application for scheme membership, there are four triggers for consideration for listing (summarised in 1.3) which are:
- where an organisational referral is made by an employer, employment agency, employment business or regulatory body 22;
- where a court makes a referral 23;
- where new, relevant vetting information is available 24; and
- where a relevant inquiry report names an individual 25.
97. This chapter looks at organisational and court referrals and also vetting information where it is a conviction (as opposed to other types discussed in more detail in chapter 4). Consideration following an individual being named in a relevant inquiry report is a rare event and not considered in this consultation paper.
98. Since scheme membership is not mandatory (i.e. there is no offence of doing regulated work when not a scheme member), it cannot be assumed that individuals doing regulated work will be scheme members. Indeed, during the period while the scheme is phased in, many individuals will be doing regulated work while not yet members of the scheme. The new, relevant vetting information trigger will only apply if the individual is a scheme member because continuous vetting will not otherwise be in place. However, organisational and court referrals will be considered whether or not the individual is a scheme member.
99. An individual may be considered for listing:
- when they apply for scheme membership because of historic vetting information about them;
- while they are doing regulated work because they are referred as a result of a workplace incident or are convicted of some types of offence; or
- even when they are not doing regulated work if they are convicted of a very serious offence .
100. Section 3.2 considers the type of information that organisations should provide when making a referral. Section 3.3 introduces listing on the basis of convictions, followed by section 3.4 which looks at automatic listing and section 3.5 which looks at automatic consideration for listing. Section 3.6 outlines how the CBU will make listing decisions. Section 3.7 sets out proposals for the time limits for individuals to make representations when under consideration for listing and organisations to respond to those representations. Finally, section 3.8 examines issues around how long an individual should have to wait before they can apply to be removed from the list.
3.2 Making referrals
101. Organisational employers, employment agencies, employment businesses, regulatory bodies and courts have either a duty or a power to make referrals for consideration for listing. Personal employers cannot make a referral. If they have concerns about an individual they should go to the police. The Act allows regulations to set out the information which should be provided as part of a referral from all these bodies 26.
Organisational referrals (employment)
102. Organisational employers, employment agencies and employment businesses are under a duty to make a referral within three months of the duty arising and failure to do so is a serious offence which can attract up to five years in prison 27. The reason this is such a serious offence is that a failure to refer might allow an individual to begin or continue harming other vulnerable people in different organisations. Three months should give organisations sufficient time to gather the right information for a referral, without leaving an unduly long period where inappropriate behaviour may continue. In broad terms, the duty to make a referral arises when the organisation takes action on the basis of the referral ground (e.g. the date of dismissal). Guidance will assist organisations in complying with the duty and, in particular, calculating time limits and handling complex incidents involving more than one individual.
103. Organisational employers, employment agencies and employment businesses also have a power to make a referral about an incident which took place prior to the Act coming into force. 28 Obviously, in these circumstances, no time limits apply.
104. In identifying the information that should be included in a referral, it is important to ensure that the information required is not so onerous as to make it difficult for organisations to compile it within the required deadline. However, organisations are only required to give the prescribed information which they hold. This means that if they don't know the individual's date of birth, for example, then they don't need to provide it. So long as the organisation provides all the required information which they do have, then they will have complied with the duty to make a referral.
105. The prescribed information must give the CBU sufficient information to start consideration of the case. If insufficient information is received, this is likely to result in delays while additional information is sought and this could pose an additional risk to children and/or protected adults. It is proposed that the prescribed information will be broadly similar to that required under the 2003 Act. The information can be divided into two classes:
- information which helps to establish the identity of an individual; and
- information which relates to the incident(s) which led to the referral.
Provision of this information will allow the scheme to gather any vetting information about the individual either from the scheme record or elsewhere 29.
- Full name and title and any other names and titles by which the individual is, or has been known, including, where relevant, maiden name, aliases and nicknames
- Any address or addresses at which the individual is or has been resident in the 10 years preceding the date of reference (in case Disclosure Scotland does not have the address details through scheme membership)
- Date of birth
- Place of birth
- National Insurance number
- Information about the individual's registration with any regulatory body.
- Whether reference is to children's list, adults' list or both lists (although if reference is to one list, it may be considered by the scheme for both lists)
- Referring organisation contact lead name and address
- Details of the position held by the subject of the referral in relation to regulated work with children, protected adults or both
- Brief description of nature of work undertaken and career history of the individual in the organisation
- Any other known current regulated work (paid or unpaid) to supplement information held by the scheme
- Details of referral ground under section 2 of the Act that has been met
- Description of incident(s) including, if more than one, the frequency of the incident(s) and period of time during which the incidents took place, and how the incident(s) came to light
- Age and gender of the child or protected adult. If the child or protected adult has a disability, additional support needs or is looked-after. Known impact of the incident on the child, other children present, or protected adult, other protected adults present
- Details of any action taken by the referring organisation
- Details of any associated disciplinary appeal or legal proceedings. If internal proceedings, the current stage, any future stages and expected date of conclusion (including appeal process).
Q 6a: Is the proposed list of prescribed referral information set out in 2.3 acceptable and proportionate?
Q 6b: Would providing any of this information (if you hold it) be problematic for your organisation?
Q 6c: Should any further information be added to the list to help establish identity or background to the case?
Organisational referrals (regulatory bodies)
106. Regulatory bodies have a power to make a referral where the employer(s) did not do so, for whatever reason. The information which regulatory bodies will be expected to provide in such circumstances will be similar to that required for employing organisations, with suitable modifications. For example, the regulatory body is unlikely to have firsthand information about the incident and an employer's disciplinary actions but would be expected to furnish details of its own disciplinary procedures, e.g. suspension of registration. No decision on whether to list would be made until the regulatory body had concluded its own proceedings, unless there was sufficient information from other sources to suggest that the individual should be listed anyway.
107. Chapter 4 examines the subject of vetting information from regulatory bodies. Prescribing particular information from regulatory bodies as vetting information is rather like placing them under a duty to refer. The vetting information route will be used to capture historical information held by regulatory bodies when an individual applies to join the scheme and to back-up the employer duty to refer and the power of regulatory bodies to do so.
108. Courts have a duty to refer an individual they convict for a relevant offence (listed in schedule 1 to the Act) and this leads to automatic consideration for listing, which is discussed in section 3.5 below. The courts also have a power to refer an individual for consideration for listing where that individual is convicted of any other offence and the court is satisfied that it may be appropriate for the individual to be listed. The information that courts will be expected to provide will be somewhat different to that from other organisations. The precise nature of the information will be agreed with the Scottish Courts Service and the Crown Office and Procurator Fiscal Service but may include, for example, the charge sheet, social inquiry reports and the sentence.
109. Usually, the clerk of the court will enter details of the conviction on to the Criminal History System within a day or so of the court's decision. If the individual is a scheme member, this will register as new vetting information and, depending on the type of conviction, will alert the CBU to anticipate a court referral. If the offence is serious, the individual may be placed under consideration for listing immediately.
3.3 Convictions and listing
110. The Scheme needs to handle historic convictions coming to light as part of the application process and contemporary convictions (not just of scheme members). There are a number of factors which might be taken into account when processing these convictions including seriousness, time elapsed, emerging patterns of offending behaviour and mitigating circumstances. As identified above, for new referrals the type of information to be collected from the convicting court can be specified. With historic offences, the Scheme can only consider the information which is available, primarily conviction and sentence information.
111. Contemporary convictions (i.e. occurring after go-live) can be divided into five categories, in order of seriousness:
- triggers automatic listing;
- triggers automatic consideration for listing;
- court decides to make a referral (which may or may not lead to consideration for listing, depending on whether the individual is involved with regulated work);
- court decides not to make a referral, but the new conviction information combined with existing information held about the individual triggers a consideration for listing; or
- court decides not to make a referral and there is no consideration for listing.
112. In the first, as its name suggests, the individual is listed automatically without consideration. In the second and third categories, the case needs to be considered by the CBU. In the fourth category, the case is not the subject of a court referral but the same information, when retrieved from the Criminal History System could lead to a consideration when taken alongside any other information on the individual's scheme record. In the fifth category, the conviction is not relevant to regulated work and so is not considered.
113. Historic convictions will be captured when an individual applies to join the Scheme. Convictions which may indicate the possibility that the individual is unsuitable to do regulated work will lead to consideration for listing. Convictions for very serious offences could lead to automatic listing.
114. The remainder of this chapter sets out various elements of the decision making process, setting out a range of options.
3.4 Automatic listing
115. The Act provides the power to set criteria for automatic listing 30. The power, if used, would allow for an individual with prescribed convictions to be listed without any determination process and without the opportunity for the individual to make representations. Essentially, if the conviction exists on the individual's record, they would be listed. The purpose of automatic listing would be to prevent people who are clearly unsuitable from doing regulated work without unnecessary procedure.
116. Although the power in the Act is broad, extending to include certain civil orders, it is intended that prescribed offences should be confined to a small list of violent and sexual offences that are so serious that there is nothing an individual could possibly say that might make the CBU question whether listing was appropriate.
117. It is proposed that automatic listing would be applied to applicants for scheme membership who met the specified criteria (i.e. had a conviction for a very serious offence). In addition anyone convicted of a prescribed offence after the commencement of the Act would be automatically listed, regardless of whether they had applied to join the scheme.
118. Automatic listing would not be applied where the individual had committed the prescribed offence when aged under 18. On application to join the scheme, such individuals would be considered for listing, giving them the opportunity to make representations before their case was considered by the CBU.
119. The advantages of automatic listing are that it:
- allows obviously unsuitable individuals to be immediately excluded from regulated work on conviction or, for historic convictions, on application to become a scheme member;
- avoids the costs of a determination procedure where the outcome is a foregone conclusion; and
- allows for a consistent approach across the UK as the SVG Act will have automatic listing for similar offences. 31
120. The principal disadvantage of automatic listing is that it eliminates any discretion for the CBU to take account of the particular circumstances in which the individual committed the offence. This means that only offences which indicate unambiguous unsuitability to do regulated work for life should be included in this category.
121. As automatic listing offences involve sexual or violent behaviour there are strong arguments that they should lead to automatic listing on both lists; the nature of the offences being so serious that the individual could not be considered a suitable person to work with any vulnerable group.
122. Annex A3 sets out two groups (1A and 1B) of serious offences against children that could be prescribed for automatic listing and group 2 comprises a proposed list of offences against adults.
123. At the minimum, it is proposed that:
- the group 1A offences against children lead to automatic listing on the children's list; and
- the group 2 offences against adults lead to automatic listing on the adults' list.
124. Views are sought on whether this should be extended so that either:
- the group 1B offences against children also lead to automatic listing on the children's list or
- all offences (i.e. group 1A, 1B and 2) lead to automatic listing on both lists.
125. Based on the numbers of people who were convicted for similar offences over the five-year period from 2001/02 to 2005/06, somewhere in the range 100-500 individuals would be automatically listed (on one or both lists) each year as a result of convictions for the group 1A, 1B and 2 offences combined.
Q 7a: What offences listed in Annex 3 should lead to automatic listing?
- Group 1A on the children's list and group 2 on the adults' list only
- Groups 1A and 1B on the children's list and group 2 on the adults' list only; or
- All three groups lead to automatic listing on both lists.
Q 7b: Are there offences which should be added to or removed from these groups?
3.5 Automatic consideration for listing (children's list only)
126. Consideration for listing by the CBU will be a two stage process. The first stage will consist of an initial consideration of any information received about an individual, either by referral or as a new piece of vetting information. If the information is sufficient to question an individual's suitability, the second stage will be a formal consideration for listing. At this point the individual and any bodies that have registered an interest in the individual will be notified that they are under consideration for listing and the individual will be given the opportunity to make representations.
127. Automatic consideration for listing is a term which does not appear in the Act but is shorthand for the circumstances in which a court makes a referral about a serious offence against a child 32. There is no parallel list of relevant offences against an adult. This was considered during the development and Parliamentary passage of the Act, but was rejected as it is not possible to set simple rules to distinguish offending against adults in general from offending which targets or exploits vulnerability.
128. Where an automatic consideration is triggered, the initial consideration would be by-passed and the individual would go straight into the formal consideration process. Once the formal consideration for listing process begins, this type of referral is handled in the same way as any other.
129. Schedule 1 of the Act contains a list of these serious offences (which it calls "relevant offences"). When a court convicts an individual of a relevant offence, it must make a referral and the CBU must consider the individual for listing on the children's list.
130. Automatic consideration for listing does not exist under arrangements for the current children's list in the 2003 Act. There is a very similar list of serious offences set out in the 2003 Act, but the procedure followed by the court and listing team is different. Under current arrangements, the court must refer an individual on conviction for a relevant offence only if it considers that the individual is likely to commit a further offence against a child. Once the referral is received the individual must be listed on the DWCL. As of 1 October 2007, there have been 154 court referrals for relevant offences, which is equates to approximately 60 referrals per year.
131. The automatic consideration for listing provision under the new Act is different. The court will not apply any further test to an individual convicted for a relevant offence. The CBU on receipt of the referral will not automatically list the individual, but the referral will automatically lead to consideration for listing without any further test of relevance. In essence, this means that the only test applied will be whether the individual is unsuitable or not. This test will be applied by the CBU as part of its determination process.
132. As with automatic listing, the individual need not be working with vulnerable groups or have any intention of doing so to be listed if the CBU considers them to be unsuitable. The duty on the court to refer is not conditional on anything other than conviction of a relevant offence.
133. The offences identified which lead to automatic consideration for listing are a statutory minimum. There is nothing to stop the courts exercising their power to refer when convicting an individual of any offence they consider may be relevant to regulated work. However, for all other than relevant offences, the CBU must additionally be satisfied that the individual does, has done or is likely to do that type of regulated work 33, before they can be considered for listing.
134. Automatic consideration for listing can only result from a court referral on conviction for a relevant offence. However, relevant historical offences identified in the vetting process for a new applicant to the scheme will also always lead to consideration for listing.
135. While schedule 1 of the Act sets out the existing list of relevant offences, views are sought on whether to add some further offences to the schedule. Annex A4 sets out the offences already covered by the definition of relevant offence in the Act (group 1) and then two further groups of offences:
- group 2 includes serious sexual offences, mostly against children, that are not already in group 1; and
- group 3 incorporates offences such as murder and culpable homicide and other serious offences against adults, which might also be relevant to an individual's suitability to work with children.
136. The principal advantage of including offences in the list of relevant offences is that an individual convicted of such an offence will be considered for listing, whether or not they do regulated work. Otherwise, individuals convicted of these offences who have never done regulated work will not be considered for listing unless or until they apply to join the scheme.
Q 8a: Should the list of relevant offences against children set out in schedule 1:
- remain as set out in the Act?
- be expanded to include those set out in annex A4 group 2?
- be expanded to include those set out in annex A4 group 3?
- be expanded to include those set out in annex A4 groups 2 and 3?
Please give any reasons for your choice.
Q 8b: Are there any offences identified in the Act which should not be relevant offences?
Please specify and give your reasons
3.6 Listing decisions
137. Other than in cases of automatic listing, the CBU will need to make decisions about listing when triggered by:
- an organisational or court referral;
- receipt of new, relevant vetting information; or very rarely
- an individual being named in a relevant inquiry report.
138. The CBU's role is to determine unsuitability rather than investigate cases. While it has the power to request information from the police, regulatory bodies, public bodies and employing organisations to assist its determination 34, its decisions will be based on the investigations of those organisations. In some cases, such as referrals, there may be detailed information whereas for others the only information available may be conviction data. The quality of information will also vary from conviction information, where an incident has been fully tested in a court of law, to organisational referrals where investigations will have lead to decisions based on a civil standard of proof.
139. The determination process will be largely internal and administrative and so not set out in detail in secondary legislation. However, sufficient detail will be made available through guidance to assist individuals and organisations involved in a case. In each instance where an individual is placed under consideration for listing, they will have the opportunity to make representations to the scheme (see section 3.7 below).
140. It is proposed that a three stage approach is used in decision making:
Stage 1 - rules based: this will be applied to conviction information primarily to rule people out of the determination process. Offences divide into three broad categories:
- Serious offences that indicate likelihood of unsuitability. These will primarily be the automatic listing offences and offences which lead to automatic consideration for listing. If an individual applies to the scheme and has a historic offence in this category, they will normally be considered for listing. Many individuals in this category will be listed.
- Intermediate offences (and all other types of vetting information) that give cause for concern because they raise significant questions about potential unsuitability. However, the fact of the offence itself needs to be considered with any other previous convictions and mitigating circumstances. Often factors such as number of offences committed and time since last offence would be relevant to the consideration. As the CBU gains experience of operating the lists, it may become clear that some of these offences should move to categories (i) or (iii), i.e. because individuals are always or never listed as a result.
- Irrelevant offences. These offences would not lead to the individual being considered for listing, regardless of how many instances of the offence there are.
Stage 2 - caseworker assessment: those cases in category (ii) require caseworker consideration before deciding whether the individual should be placed under consideration for listing. The majority of listing decisions will be taken by caseworkers applying detailed criteria, looking at issues such as patterns of offending, timescale for offending behaviour and period since the last offence (taking account of time in prison), as well as consideration of any non-conviction information. Criteria will be developed, based on risk management principles, which will evolve as the scheme develops.
Stage 3 - expert consideration: this will be reserved for the complex cases, many of which will be organisational referrals. The expert consideration route will be used where there is no precedent or there is a complex or conflicting case or where a decision to list is marginal.
All decisions will be underpinned by robust quality checking procedures recognising the significance of listing decisions.
Q 9: Do you have any comments on the approach to making listing decisions set out in 3.6?
3.7 Listing procedure
141. The Act provides the power to make regulations about the operation and maintenance of the lists 35. Much of the detail of operation of the lists will be set out in administrative arrangements, but an important statutory provision is the time limit for individuals to make representations when placed under consideration for listing and organisations to respond to those representations. Experience of operating the DWCL suggests that some individuals need more than the existing 21 days to submit their initial observations, to take legal advice, seek out historical documents or track down witnesses. Extensions to the 21 day time limit have sometimes been requested and granted. However, experience suggests that observations are generally submitted within 28 days.
142. It is therefore proposed to increase the length of time for individuals to submit initial observations from 21 days to 28 days. Similarly, referring organisations will have 28 days to respond to those observations.
143. It is not proposed to allow longer than 28 days as there is a tension between allowing the individual and organisations sufficient time to respond and the need to make a timely listing decision. Sometimes there can be several iterations in this process and it is important that this does not delay unduly the making of the listing decision, compromising the protection afforded to vulnerable groups and resulting in prolonged uncertainty for the individual under consideration.
3.8 Removal from lists
144. Once an individual is listed, they will not normally be removed from the list(s) unless or until they make an application for removal. Listing individuals prevents them having access to vulnerable groups through their work, where they are deemed to pose an unacceptable risk to those groups. It is not a punishment or sentence so, unlike criminal justice sanctions, they are not listed for a length of time dependent on the seriousness of the incident(s) which caused them to be listed.
145. An individual may apply for removal from the list(s) if their circumstances have changed since the listing decision or last application for removal 36. For example, where a conviction which was material to the listing decision has been overturned on appeal.
146. In addition, a listed individual also has the right to make an application after a certain period of time has elapsed. This is termed, for the purposes of this consultation, the minimum no-review period. These time periods will be set out in regulations and this section seeks stakeholders' views on two particular issues:
- the age below which the individual should be entitled to make an application for removal on a shorter time period; and
- whether the period should begin from the date of inclusion on the list(s) or the date of the most recent incident or offence material to the listing decision.
147. A competent application for removal from the lists will lead to a consideration which mirrors the original consideration for listing. The CBU will consider whether, on the balance of probabilities, the individual is unsuitable to do regulated work. If this is no longer the case, the individual will be removed from the list(s).
Age threshold for a shorter minimum no-review period
148. It is proposed to set a minimum no-review period of 10 years for adults and 5 years for children under 18 at the time of listing.
149. The argument for having a shorter period for young people is that they are still maturing and developing. Therefore, it may be reasonable to set a shorter minimum no-review period for these individuals. This also recognises that most offences are committed by young people, many of whom will not commit similar actions for the rest of their lives.
150. Consultation is currently taking place in England, Wales and Northern Ireland on proposals to raise the age threshold to 25 in those jurisdictions. Current arrangements for the children's list provide for a shorter period for individuals aged under 18 only, so this change would be an extension of the rights of listed individuals aged 18-24 at the start of the time period. Views are sought on whether this would also be appropriate for Scotland.
Advantages of raising the threshold to 25 years of age:
- gives younger listed individuals an earlier opportunity to be considered for removal from the list;
- does not pose any additional risk to vulnerable groups as each case is considered separately on its merits; and
- consistency across the UK avoiding a situation whereby young people in Scotland have a longer minimum no-review period than their counterparts in the rest of the UK.
- potentially more applications for removal to be considered by the CBU, many of which may not be successful;
- the age of majority is 18 years in the Act for other purposes, so this creates a discrepancy within the Act; and
- less consistent with other legislation. For example, under the Rehabilitation of Offenders Act 1974 and the Sexual Offences Act 2003, offenders have their rehabilitation period and notification period halved if they were under 18 at the date of conviction.
Q 10: Should the age threshold for the shorter minimum no-review period be set at 18 or 25 years?
Start of minimum no-review period
151. Under current arrangements, the minimum no-review period begins on the day on which the individual was included on the list. This time-frame applies irrespective of when the offence was committed or incident took place. This means that a person could be listed for events that took place a number of years before the listing decision.
152. The use of vetting information to trigger a consideration for listing raises the possibility that more individuals will be listed on the basis of events that took place some time ago. There is an argument that where an individual is listed on the basis of historic events, the start of the minimum no-review period should relate back to the date of those events. Where someone is listed as a result of a number of offences at different times, the minimum no-review period could run from the most recent date of conviction. This would enable individuals who are listed because of incidents which took place some time ago to make an application for removal earlier than individuals who are listed because of more recent events.
153. There are three basic options for the start of the minimum no-review period:
- the date of the most recent incident (i.e. the date the offence or harm took place) but this could be difficult to determine in some cases;
- the date of conclusion of the proceedings (i.e. the date of dismissal by an employer or conviction by a court); or
- the date of listing itself (as now).
154. If individuals are listed on both the children's and adults' list, the start of the minimum no-review period will normally be the same because it is the same matters which are leading to the listing on each list. However there may be circumstances where they are different because an individual on one list later does something which leads to listing on the other list. It is proposed in these circumstances that a single minimum no-review period will apply, being that of the first listing. This is to the advantage of the listed individual but also avoids making the time limits and procedures unnecessarily complicated for the individual and the CBU.
Advantages of tying the minimum no-review period to the event which triggered listing:
- it could be seen to be fairer and more proportionate for listed individuals; and
- it would not pose additional risk to vulnerable groups as applications for removal would not necessarily lead to removal.
- It could be difficult to pinpoint a date in some cases, especially in the case of organisational referrals concerning harm done over a prolonged period; and
- It could lead to some listed individuals being able to apply for removal after a relatively short time has elapsed since being listed (or no time if the events took place more than 10 years prior). This could be overcome by setting an additional criteria that the minimum length of the minimum no-review period is, say, 2 years, irrespective of the above calculation.
Q 11a: Should the minimum no-review period start:
- always from the date of listing?
Or for historic offences should it start from
- the date of the incident/offence or
- from the date if dismissal/conviction?
Q 11b: Do you have any other comments on the proposals for applications for removal from the lists?