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CHAPTER 3: REFERRALS AND LISTING -PROPOSED ACTIONS
3.2 MAKING REFERRALS
Q6. What should be included in the list of prescribed information for referrals for listing?
The consultation proposed a list of information that should be prescribed for inclusion in an organisational referral for consideration for listing. The consultation sought views on whether this was appropriate and proportionate. The majority of respondents felt that this was proportionate and would in most cases be readily available. Some smaller organisations expressed concern that they may not be able to provide all of the information in all cases. However, the PVG Act is clear that organisations need only provide information that they hold.
The Scottish Government plans that the list of prescribed information will be based on that in the consultation document.
The guidance to potential referrers will emphasise that all of the information need not be provided in order to make the referral competent. However, failure to make a referral within 3 months of the duty arising will be an offence under the provisions of the PVG Act.
3.4 AUTOMATIC LISTING
Q7. What offences should lead to automatic listing?
The consultation sought views on the types of offences that should lead to automatic listing of the individual. That is to say, any individual who commits such an offence, or has done so in the past and applies to join the scheme would be automatically barred from regulated work and would have no opportunity to make representations. In particular, the consultation sought views as to whether there should be separate lists of offences for adults and children and asked for comments on the content of the proposed lists of offences.
Respondents were strongly in favour of prescribing automatic listing offences. The majority favoured the same limited number of offences being prescribed for automatic listing on both the children's and adults' lists. They did so because the nature of offences are so serious that the individual would not be suitable to work with either vulnerable group.
The list of offences favoured is broadly in line with those in the scheme introduced through the SVG Act 2006 for auto bar offences (without representations).
The Scottish Government plans to define limited lists of offences that will lead to automatic listing on each of the children's and adults' lists where the individual is aged 18 or over at the time of conviction. It is anticipated that there will be a high degree of overlap between the two lists, recognising that the seriousness of the crimes will indicate unsuitability to work with both vulnerable groups.
Where an individual is under 18 at the time of conviction then they would not be automatically listed, but would always be considered for listing, allowing them to make a case in mitigation of their actions.
A tightly-drawn list of offences based on those in the consultation paper, but refined further to reflect responses and further policy consideration (for example, to include murder of a child) will be set out. The draft list of offences will be further consulted on alongside the draft SSI. Longer term, provisions will need to be put in place to amend the list in the light of new offences arising from legislation, for example the Sexual Offences (Scotland) Bill.
3.5 AUTOMATIC CONSIDERATION FOR LISTING
(CHILDREN'S LIST ONLY)
Q8. What offences should lead to automatic consideration for listing (children's list only)?
Respondents to the consultation were given several options in relation to the groups of offences that might lead to automatic consideration for listing. Group 1 was as set out in the Act. Group 2 added additional sexual offences against children and group 3 added further offences committed against an adult that would bring into question suitability to work with children.
Some 60 per cent of those who answered the question supported inclusion of both group 2 and 3 offences, which would mean that the widest range of offences lead to automatic consideration for listing. All of these offences are significant and serious offences and having committed them would bring into question the individual's suitability to work with children. They go beyond sexual offences to indicate a wider risk of significant harm to children.
Whilst there is no comparable statutory procedure for automatic consideration for listing on the adults' list, any scheme member or applicant for the protected adults' workforce who commits one of the prescribed offences is likely to be considered for listing on the adults' list or on both lists.
The Scottish Government intends to modify the existing list of offences in schedule 1 of the Act to include other serious offences that would bring into question the individual's suitability to work with children. A comprehensive list of offences based on those consulted on will be compiled.
Older statute now repealed but which may still be on an individual's criminal record will not be prescribed since the duty on courts to make referrals only has any meaning in respect of contemporary convictions. However, lists of equivalent repealed offences will be used administratively to help identify those individuals that require formal consideration for listing. As with automatic listing offences, the schedule will be reviewed and amended as required to take account of new offences arising from legislation, including the Sexual Offences (Scotland) Bill. The draft SSI will include a full list of the offences and will be subject to further consultation.
The extended list of offences will broadly mirror the auto bar offences (with representations) under the SVG Act 2006.
3.6 LISTING DECISIONS
Q9. Do you have any comments on the approach to making listing decisions set out in 3.6?
The majority of consultees found the proposed approach (of rules-based, caseworker assessment and expert consideration) to be fair, appropriate and comprehensive. The concerns that were raised (eg safeguarding the rights of individuals and transparency of decision-making) are actively being considered.
3.8 REMOVAL FROM LISTS.
Q10 and 11a. Should the age threshold for the shorter minimum no review period be set at 18 or 25? When should the minimum no review period start?
An individual may apply to be removed from the list(s) at any time if they can demonstrate that their circumstances have changed. In addition, individuals may apply for removal after a certain prescribed time period has elapsed. This is known as the minimum no-review period.
The intention is that the period should be set at ten years for adults and five years for young people. The consultation asked whether young people should be regarded as under 18 or under 25 for the purpose of the minimum no-review period. It further asked when the period should commence.
Of those who responded, there was marginally more support for the age threshold for the five year minimum no-review period being set at 18 rather than at 25. This is less of an issue for the PVG scheme than it is for the rest of the UK. This is due to the additional provision in the PVG Act allowing for the individual to apply for removal from the list(s) at any time, if they can prove that their circumstances have changed since the listing decision or last application for removal.
The majority support was for the minimum no-review period to always start from the date of listing. This is the most consistent approach as it is dependent on a decision that the individual was unsuitable on that date regardless of when the harm occurred or the historic nature of the offence/conviction.
There may be some circumstances where an individual is barred from one workforce, then as a result of some later incident is also barred from the other workforce. The consultation proposed that a single minimum no-review period should apply, commencing with the first listing. Although comments were not specifically invited on this proposal, some respondents expressed concern that this may benefit the individual at the expense of jeopardising the protection of vulnerable groups. However, it is important to note that the minimum no review period only sets a date when the individual can apply for removal. That removal will not be automatic and formal consideration will be given to whether the individual poses a risk to one or both workforces before a decision to remove them from one or both lists is taken.
The Scottish Government proposes that individuals may apply for removal from the list(s) after five years if they are aged under 18 at the date of listing or after ten years if they are aged 18 or over. The minimum no review period will commence from the date of first current listing.
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