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Listen
Chapter 3: Referrals and listing
Chapter 3 Key Points Summary
- The majority of consultees (77%) felt the list of prescribed information was acceptable and proportionate.
- The majority of consultees (60%) reported that they would not find it problematic to provide the information they already held.
- The majority of consultees (55%), from a cross-section of organisations, thought that individuals with convictions in any of the groups mentioned should be automatically listed on both lists.
- A clear majority (60%) of consultees, across all sectors, felt that the list of relevant offences against children set out in Schedule 1 should be expanded to include those set out in Annex 4 groups 2 and 3, i.e. the existing list of relevant offences and serious sexual offences, mostly against children not already covered, and other serious offences against adults.
- 43% did not feel any offences should be removed, although this was recognised to be a complex area.
- Opinion was very evenly split as to whether the age threshold for a shorter minimum no review period should be set at 18 or 25, with 39% saying 18, 37% saying 25 and 25% not answering the question.
- The majority of consultees found the proposed approach to be fair, appropriate and comprehensive, although it was emphasised that the system must be developed to be robust and professional.
- There was most support for the minimum no review period to always start from the date of listing (39%)
Introduction
Chapter 3 of the consultation considers a range of issues around the processes leading to an individual being added to the children's list, the adults' list or both. Inclusion in the lists means an individual will be barred from working in the relevant regulated workforce.
Consultation participants were asked to consider the details of the processes proposed, including the offences listed, and the three-stage approach that would be used by the Central Barring Unit ( CBU) to determine whether a person should be listed. Finally views were sought regarding the processes for review of an individual's status and application for removal from lists.
3.2 Making Referrals
Referring organisations will be asked to provide a range of information to allow the scheme to gather vetting information about an individual, either from the scheme record or from other sources. Consultees were asked to consider whether the proposed range of information to be requested was "acceptable and proportionate" and whether their organisation would be able to provide this information if they held it.
Q6a Is the proposed list of prescribed referral information set out in 3.2 acceptable and proportionate?
The majority of consultees (77%) felt the list of prescribed information was acceptable and proportionate
"The list is robust and should ensure that all relevant information is gathered about the individual prior to employment."
Voluntary sector
"Yes. Provided that referral information requirements are clearly defined and that smaller organisations have adequate access to assistance from the CBU in obtaining that which is required."
Regulatory Body
Within the statutory sector, Health organisations found the information very comprehensive although consultees from Social Work and other Council departments suggested that a single list would have been preferred as this would make the process more manageable.
"One single list would better meet the policy objectives of the scheme."
Council
The consultation document stated that "organisations are only required to give the prescribed information which they hold". However there appeared to be wide-spread confusion around this point and a commonly held belief that organisations would be required to obtain the range of information described. Concern was widely expressed within the voluntary and public sector that smaller voluntary organisations, particularly those staffed by volunteers, simply would not be able to provide this level of information.
The position of X, a voluntary sector umbrella organisation, endorsed by the Protection of Vulnerable Groups Coalition 1, was that:
" The proposed list of prescribed referral information would not be acceptable or proportionate to many informal voluntary organisations that are run and managed by volunteer management committees. Currently this level of information prescribed is not kept by organisations. For voluntary organisations the prescribed list is neither acceptable nor proportionate."
Voluntary Organisation
The range and level of information detailed also exceeded the kind of information previously collected by larger staffed voluntary organisations (e.g. place of birth, NHS number and involvement in other projects) and concern was also expressed regarding how this information could be verified and updated. For example, was it sufficient to receive information from a volunteer in good faith or would evidence be required?
Further Detailed Comments on Required Information
A few public and voluntary sector organisations queried the level of some of the information required e.g. the need for a 10 year history, rather than the 5 years previously requested:
"The required referral details are appropriate. However, the identification information required is overbearing and reduces the chances of organisations being able to respond to concerns in a timely and efficient manner. For example, 10 years of address history, place of birth as well as other names by which the individual has been known are not necessarily recorded or likely to be sourced easily by the employer."
Voluntary Organisation
"Although generally we support the list, we have some concern about the address or addresses that someone will have been resident the previous 10 years from date of reference. This is not usually a question on employment application forms and if Disclosure Scotland does not hold this information, it would seem extremely onerous for employers to need to gather this information or be able to verify it."
Social Work
"We note that "organisations are only required to give the prescribed information which they hold". However, we are concerned that the prescription of information not generally held by voluntary sector organisations may result in increased bureaucracy if organisations feel compelled to cover their backs by gathering an ever-increasing quantity of data…We would, therefore, prefer the referral information to be described as "desirable" rather than "prescribed" in order that organisations should not be deterred from making referrals if they lack personal information about the relevant individual."
Voluntary Organisation
Support and Training
There was felt to be a clear need for support and training to be provided by the Central Registered Body in Scotland ( CRBS) and CBU to assist smaller organisations to access the "required" information and also for robust training for the CBU itself.
"In order for local volunteers / small informal groups to comply, there will need to be a programme of training and support …In particular there needs to be guidance on the standards / robustness of information required, and related training on handling and recording 'disciplinary' matters in an appropriate manner that will support the production of 'evidence' and documentation to an acceptable standard and in compliance with expectations on confidentiality and data protection. The potential considerable administrative burden (time and cost) that this could place on voluntary organisations / volunteers must also be recognised."
Voluntary Organisation
"Whilst the arrangements for carrying out the determination process outlined in paragraph 140 are not spelled out, if experience of the Disqualified from Working with Children List is replicated, this will not allow for individuals to make representation to those considering the listing on a face-to-face basis… with the ability to call witnesses if required. (We) believe this is inherently unfair to individuals under consideration for listing.…we (also) have some reservations at the potential inexperience of members of the Central Barring Unit who are making these decisions, and would wish assurance that comprehensive training and monitoring would be incorporated into the process. In particular we would wish to be assured that those carrying out caseworker assessments as outlined at stage 2 would have a comprehensive knowledge and experience of the procedures adopted by those working with vulnerable groups."
Other
Other Issues Raised
- Referral of Earlier Incidents
"Point 103: If an incident took place prior to the Act coming into force, and is submitted as a referral, what steps will be put in place to ensure that the incident was properly investigated and is not malicious?"
Voluntary Organisation
"How will identification information be checked for economic migrants and people who have not been resident in the UK for 10 years?"
Voluntary Organisation
- Equality Issues- terminology
"In terms of equality, should identification information have the term "maiden name" included, or should it read all other names the person has been known as in connection to their employment in or contact with your organisation."
Voluntary Organisation
Some public sector bodies felt that the information required was simply not relevant to them:
"The proposed list of prescribed referral information is not appropriate to X as we don't have or need this referral (as opposed to identification) information. We can however provide information in the second and last bullets (referring organisation contact lead name and address and details of any associated disciplinary appeal or legal proceedings)."
Regulatory Body
Q6b Would providing any of this information (if you hold it) be problematic for your organisation?
The majority of consultees (60%) reported that they would not find it problematic to provide information that they held.
"The various organisations represented on the Child Protection Committee would not find this problematic."
Child Protection Committee
"Some of the info we wouldn't have as current enhanced disclosure documentation is only retained for 90 days as advised. But if we only need to supply what we have then this should present no difficulty."
Voluntary Organisation
A few organisations noted that it would have some human resource implications which would need to be addressed:
"Capacity issue - who would actually do it - likely to be human resources, however, as it would be a statutory obligation then it would be done."
Health
"Although in principle it would be possible to provide this information, there was some concern about the resource implications. It was also felt that it would be helpful if the information requested was consistent with information required by other regulatory bodies for their investigation purposes…. (and) a standard referral template would be welcomed."
Council
Potential Difficulties
"The information should not be problematic, however, there might be data protection issues, for example, if the information is provided in the nature of a reference and where the provider expressly asks this to remain private and confidential."
Education
"If a referral is due to a disciplinary hearing the copying and postal charges could be high. In addition if the police are involved they may not release evidence or allow the referral within the time limits."
Voluntary Organisation
Others noted that changes would be required to their existing systems to enable the information to be available:
"It might prove difficult to provide personal information relating to the subject of the referral, some of the info will not be collected and retained as standard. (Some information may) be collected under Disclosure Process but in accordance with current guidance it is destroyed after six months. e.g. 10 year address history…"
Voluntary Organisation
Concern was also again expressed regarding the ability of voluntary organisations to provide the information listed, relating to lack of capacity within the sector.
"Small voluntary groups, like parents organisations, do not hold records on folk who offer to help. They do not have the capacity to hold such records; they do not have anyone who is able to be responsible for such records. The most such groups would know about a volunteer would be name, address and telephone number."
Voluntary Organisation
Some Regulatory Bodies also felt that there would be difficulties:
"Provision of this information could be problematic. While X would hold the information on its own staff and for Childminders, there would currently be insufficient grounds for requesting this information from services. As a regulatory body, we would expect the service to make the referral and provide the information. However, there may need to be a modification for regulatory bodies if they are to make a referral. There would either have to be a right of access to information for regulatory bodies within the regulations or a clause that regulatory bodies can refer on less information."
Regulatory Body
"(We) would not hold details pertinent to a registered nurse or midwife's employment. In relation to a referral under the Protection of Vulnerable Groups (Scotland) Act, (we) would only have information supplied by the employer / other referrer"
Regulatory Body
Q6c Should any further information be added to the list to help establish identity or background to the case?
40% of groups felt there is no need to add further information to the list; that it was sufficiently comprehensive for a referral.
"We do not believe any further information needs to be added to the list to help establish identity or background to cases."
Other
"We suggest that further information should only be given to the CBU when staff in liaison with the referring organisation have established that referral procedures have been followed fairly and there is a prima facie case for further investigation"
Voluntary Organisation
23% felt that further information could usefully be included, primarily Child Protection Committees, Police, Social Work and Education consultees.
Possible Additional Material
Identification Details of Individual Referred
Police and Child Protection Committees felt that photographic identification should be provided where available and that a template type report would be useful to ensure consistency.
Regulatory bodies felt it was important to note whether the referred individual was registered with them:
"It would be helpful if questions could be added about whether the worker in question is registered with a regulatory body and if so, the name of that body and whether the employer has also made a referral to it. These questions would provide a helpful trigger to employers to inform regulatory bodies and it would also ensure that the Scheme is aware that a regulatory body had an interest in the referral."
Regulatory Body
Other possible additions included gender, driving licence details, Community Health Index number, Disclosure Record number or Scheme number, nationality, passport number and, in the case of migrant workers, visa and work permit details and membership of Workers' Registration Scheme.
Further Information Regarding Referral
- Referring Individual/Organisation
Some consultees felt that it would be helpful to have some details of the person and organisation making the referral and any witnesses. Another suggested that it would be useful to leave space for individuals to include any extra information they felt was relevant.
- Historical Information Held
A few organisations wanted much more detailed information included, including any historical information held:
"To be circumspect in the decision making process it would be useful to include any written statements from witnesses and the subject of the enquiry."
Police
"Knowledge of previous employment, especially in relation to regulated work, might be helpful. (Also) Within Referral details some comment on the individual's response to the action taken by the organisation when incident came to light and was investigated. E.g. failed to accept responsibility/seriousness; honest and admitted lapse of judgement/behaviour; sought to deny and cover up."
Education
"Given the historical aspects of incidents referred to in Paragraph 103 and the need to contribute to the fullest range of vetting information for consideration of listing and future decision-making by the CBU [Central Barring Unit], it would be useful to detail the provision of historical information in the possession of or known by the referring organisation. E.g. organisations may hold information in personnel files, over substantial periods of time, which may not meet today's standard of proof, but provide important context in relation to patterns of behaviour or moves before formal action is taken."
Social Work
Guidance on the Retention of Information
"It would be useful to have guidance on information that organisations should retain as there is a risk that employee or client representatives will challenge our right to hold or supply the information on grounds of Employer Policy, Data Protection Act and Human Rights Act grounds. For example, X Council's Disciplinary Policy has a default provision where records of disciplinary investigations that are inconclusive and disciplinary warnings that have expired will be destroyed. It is entirely possible that where the person was subsequently considered for referral because of another incident, earlier incidents of a less serious nature would nevertheless be relevant as evidence of increasingly risky behaviour evolving and that this in turn would be relevant to a decision to list or not. On the basis of the above example it would be useful to list examples of employee and client information that it is recommended that organisations should retain. This could be done in a code of good practice."
Council
3.4 Automatic Listing
Offences leading to Automatic Listing and Consideration for Automatic Listing
It was proposed that conviction for some offences should lead to either automatic listing or automatic consideration for listing and organisations were asked to consider the offences proposed and whether they felt any should be removed or added. There are to be two separate lists: one for individuals barred from working with children and one for individuals barred from working with protected adults.
Q7a: What offences listed in Annex 3 should lead to automatic listing:
- None
- Group 1A on the children's list and group 2 on the adults' list only
- Groups 1A & 1B on the children's list & Group 2 on the adults' list only
- All groups lead to automatic listing on both lists
- Not stated
All three groups leading to automatic listing on both groups
The majority of consultees (55%) thought individuals with convictions in any of the groups should be automatically listed on both lists. There was a wide cross-section of consultees supporting this with particularly high support from Child Protection Committees, Police, Council Social Work and Education departments, Early Years and the majority of Voluntary Organisations.
"It is X's opinion that all three groups should lead to automatic listing on both lists. We would fully favour one list for both children and adults as we are not persuaded that there would be any instance where vetting information which is considered for listing would make an individual appropriate for working with any vulnerable person, whatever the age group."
Regulatory Body
The findings of the electronic polling at PVG consultation events were that 50% of participants believed that there should be a single list of convictions that should lead to an automatic bar from both types of regulated work. A smaller proportion of consultees however (14% overall) were in favour of separately specified lists. 41% of participants in the electronic polling at consultation events had been in favour of separately specified lists of convictions for work with children and for work with protected adults.
Concern was expressed by some consultees regarding the possibility of "innocent" people being listed. Others felt that this was unlikely in the vast majority of cases and expressed confidence in the criminal justice system:
"All are very serious and conviction process will have taken account of any mitigating circumstances."
Education
"Members of the Child Protection Committee are aware that to be found guilty of these offences would require significant levels of evidence and often "plea bargaining" results in lesser sentences than is merited by the offence."
Child Protection Committee
A Single List of Disqualified Individuals
Some groups felt that there should be only one list, rather than a separate one for vulnerable adults and children. The key issue was seen to be simply one of vulnerability: i.e. the protection of vulnerable people as a grouping which included children.
"There is a need for clarity and consistency with respect to the interpretation of suitability of an individual where serious offences as set out in the Annex occur. We believe it unreasonable to expect that a person deemed unsuitable to work with adults would be considered a fit and proper person to work with children."
Voluntary Organisation
It was also noted that there was a "grey area" where children became adults in society according to different criteria and laws.
"As there is the grey area between the ages of 16-18 where children and protected adults overlap it is important for those offences to lead to automatic listing on both lists."
Voluntary Organisation
The other three options were each selected by a small minority (6-8%) of consultees, including a few regulatory bodies, who felt that automatic listing should be kept to a minimum and cases considered on an individual basis.
"As a matter of principle, offences leading to automatic listing should be kept to a minimum, otherwise they might raise human rights objections. This would concern me, not just because of possible transgressions of the human rights of adults, but also because adults will withdraw from contact with children if they believe they will be treated unfairly if an allegation is made against them, whether proven or unproven. Even those listed automatically should be able to apply for removal from the list after a prescribed period."
Other
Groups 1A and 1B on the children's list only and group 2 on the adults' list only
Those supporting Option 3- Groups 1A and 1B on the children's list only and group 2 on the adults' list only were primarily from Health, Council and Voluntary Sector organisations.
"The number of offences leading to automatic listing without any determination process and without the opportunity for the individual to make representations should be kept to the absolute minimum. That is, Group 1A on the children's list and group 2 on the adults list."
Regulatory Body
A Regulatory Body in Health made the proviso that selection of this option would be subject to:
"X having the discretion to place individuals on both lists should the circumstances of the case indicate that this is appropriate."
Regulatory Body
Group 1a on children's list and group 2 on adults' list only.
A similar-sized minority opted for the second option of automatic listing for Group 1a on children's list and group 2 on adults' list only.
"I would suggest that any automatic listing is restricted to Groups 1A and 2. My reason for excluding Group 1B is that some of these offences cover a very wide spectrum of activities. Section 12 of the Children and Young Persons (Scotland) Act 1937 is used to prosecute cases of neglect of all sorts, including leaving children unattended. Views on the age at which children can be left unattended vary widely both in the UK and across cultures. The offence needs to be considered in its context."
Other
A leading national Voluntary Organisation in children's welfare gave the following rationale:
"Group 1B of Annex 3 requires more consideration as many of the offences listed are broad spectrum offences that require clarification. (We) believe that it may be more appropriate for those offences in group 1B to be automatically considered for listing but for the decision to list to be made on a case by case basis. For example
1. We know that X is receiving increasing reports of inappropriate sexual behaviour between children. This behaviour may be considered a lewd, indecent or libidinous act towards another child. However, the decision about whether the offence will result in listing should be sensitive to the individual circumstances of each case.
2. A parent, suffering from mental health problems, may have been guilty of cruelty and neglect towards his/her child. However, if that parent can show that the offence was a direct result of his or her illness, and that these circumstances have changed with treatment, automatic listing may not be appropriate. Again, decisions about listing in such as situation should be made on a case by case basis."
Voluntary Organisation
None; No Automatic Listing
The remaining option was no automatic listing. Those choosing this option were from Voluntary Organisations, "Other" and a Health Care Regulator. These consultees felt that conviction for the offences on the lists should lead to automatic consideration for listing and should be looked at on a case by case basis.
"Automatic listing should be minimised and instead decisions made on a case by case basis. If this becomes difficult to manage then the offences under group A should be automatically listed and list IB should be considered for automatic consideration. A robust and thorough process must be carried out by the CBU in making decisions on automatic listings and automatic considerations for the lists."
Organisation
"Automatic listing would lead to a rigid approach, which would not give any room for discussion of mitigating circumstances. We feel, instead, that the offences on all the suggested lists should lead to automatic Consideration for Listing which would enable the "panel of experts" to reach a reasoned decision on a case by case basis about the suitability of the person to work with vulnerable people."
Other
The Health care regulator that selected this option stated that their own procedures would continue to operate in the event of automatic listing:
"A listing decision would not lead to an automatic sanction being imposed on a registrant."
Regulatory Body
Other Issues
It was felt by some that there needed to be seen to be a clearer rationale behind the offences listed, as many serious crimes were not on the list and this would be difficult for most members of the public to understand.
"Although we support the automatic listing for serious sexual offences against children and adults, like the Independent Safeguarding Authority ( ISA) scheme, the automatic offences do focus on those of a sexual nature, possibly because of their origin in child protection systems. However the public need to understand why other serious offences such as murder are not on the automatic lists and the consultation would benefit from some clearer rationale, particularly as the list of automatic offences for barring where vulnerable adults are involved are so short, and concentrate on sexual offences. It is also not clear to (us) why murder, attempted murder, manslaughter, actual bodily harm and grievous bodily harm are not on the list of offences which the courts would have for automatic consideration for listing when dealing with offences against children.
That there must also be consistency with England, Wales and Northern Ireland in the operation of the system so that it compliments the operation of ISA. It is our understanding that the ISA proposes that someone who has committed an automatic barring offence against children will still be open to work with vulnerable adults as that offence won't place automatically place them on barred list for working with vulnerable adults (albeit their offences and other reports of conduct will be taken into account by the ISA when considering registration of membership and continuous vetting for the scheme, and this may lead to a bar of working with vulnerable adults as well as children). Whatever is decided, the system needs to tie in with the rest of the UK on the principle of whether offences leading to an automatic bar rule out working with both groups."
Social Work
However, findings from the discussion scenarios at the PVG consultation events demonstrated that delegates found it difficult to make listing decisions. They took a variety of factors into consideration when making their decisions. This would appear to back-up the rationale of having the list of convictions leading to automatic listing being limited to only the most serious of offences, where there is nothing that the individual could say that would indicate they were not unsuitable to enter the regulated work force.
For example in discussion session 2 at the PVG events, scenario 1 related to someone who had been convicted of murder. Asked whether the individual should be added to the lists of those barred from regulated work, over half of groups (56%) chose to list the individual but around a fifth (18%) chose not to list, whilst another fifth (20%) were undecided and 5% felt that consideration for listing would be appropriate. This shows that a conviction for something as serious as murder is not necessarily seen as meriting listing in all cases. Scenario 3 related to an individual with a fairly lengthy list of convictions, including those of a sexual nature, and 97% of groups chose to list that individual.
Q7b Are there offences which should be added or removed from these groups?
- Yes, added
- Yes, removed
- No
- Don't know
27% of consultees felt that the listings were comprehensive. A smaller number (15%) from a cross-section of organisations, but particularly Child Protection Committees, felt that some offences should be added to the lists. Additional crimes highlighted included crimes of violence, serious drug-related crime, certain types of dishonesty and newer sex-related internet offences.
"Child trafficking and on-line child grooming activity may be worthy of consideration."
Child Protection Committee
"There are some offences of dishonesty involving a significant abuse of trust that should be included. These are bogus workmen style thefts and frauds and deceptions committed in such circumstances."
Child Protection Committee
"There should be added a proviso that any crime or offence, committed in another country world wide and falling within the terms of relevant Scottish Legislation should lead to automatic listing. Recent examples of persons convicted abroad but holding no conviction in Scotland or UK and returning to the UK for residency are examples."
Voluntary Organisation
A few groups noted that the lists may need to be changed over time or needed careful consideration:
"We believe that there is a current Scottish Government consultation on the Scottish Law Commission report on rape and sexual offences which may have implications in time."
Voluntary Organisation
"We agree that this requires full discussion and is a complex area. There are human rights issues and individual differences in cases but the protection of children, from people who have committed serious offences against other human beings, has to be the first consideration for a Child Protection Committee."
Child Protection Committee
3.5 Automatic Consideration for Listing (Children's list only)
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?
Option 1 Remain as set out in the Act
Support for the status quo was very small and related to particular concerns organisations had regarding potential "side-effects" of the other options.
"(Option 1) offers clear guidance and does not get into areas of legislation where there is potential inequality within the legal system e.g. how gross indecency laws are interpreted and can be used to discriminate against gay and bi-sexual men."
Voluntary Organisation
"It is of concern that automatic consideration for listing because of particular crimes, can apply to individuals who have no intention of working with children/vulnerable adults. It is not frivolous to point out that figures relating to those who are placed on the list but had no intention of working with children, will inflate the apparent success of the legislation and will skew assessments of its effectiveness. Statistics relating to such individuals must be kept separate from statistics relating to those who applied to work /were working with children and vulnerable adults."
Education
Option 2 Be expanded to include those set out in annex A4 of group 2
Support for Option 2 was largely limited to a Regulatory Body who noted that this option was compatible with their existing policy and would therefore simplify the interaction between the automatic listing and their regulatory role.
Option 3 Be expanded to include those set out in annex 4 groups 2 & 3
The majority (60%) favoured the list of relevant offences being extended to include those set out in Annex A4 groups 2 and 3. This option was supported across all sectors, particularly Child Protection Committees, Early Years, Police, Regulatory Bodies, Social Work and a wide range of Voluntary Organisations.
"Commission of any of these offences indicates that the individual has already exploited a vulnerable person, or persons. There therefore needs to be due consideration as to whether or not it is appropriate for the individual to come into contact with any vulnerable person. The assessment of a person's level of risk should not be victim centred. Much more relevant are the perpetrator's behaviour and thinking. If one avenue to victims is closed it is perfectly possible to explore others."
Council
" Annex A4 groups 2 and 3 include offences which would potentially make an individual a risk to children. The assessment of a person's level of risk does not rely on the single factor of the age (or other characteristic) of the victim; it should not be victim-centred. The dynamics of the offender's behaviour and thinking are absolutely significant in relation to assessing risk; cross-over offending or moving from targeting one type of victim to another is logical if seen within the context of the victim providing the means of satisfying the offenders behaviour, rather than the victim signifying a particular offender behaviour. "
Regulatory Body
"….It is not certain that in every single case of an offence as detailed in groups 2 and 3 the offender would be unsuitable to ever work with children. It is therefore proportionate and reasonable to allow offenders in these categories to make representations in order that in certain circumstances, there may be justification for not listing such offenders on the barred list."
Regulatory Body
Other Considerations Raised
It is important to note that 31% of organisations opted for none of the options presented. The issue was recognised to be very complex and many consultees declined to make a decision:
"Not competent to comment."
Council
"For legal profession's consideration."
Health
Expansion of Lists
Others felt that other offences should be added that were not listed on any of the lists, including "statutory rape", "sexual and violent offences against adults", all "serious convictions", crimes of fraud involving the abuse of trust, arson and possibly offences of cruelty to animals.
Rationalisation of Lists
Some organisations felt that there was a need for transparency and a simplified list of offences.
"It seems appropriate to bring together all the relevant offences to support the aim of having a proportionate and easily understood vetting and barring scheme."
Voluntary Organisation
"Any of these offences are of sufficient seriousness in the context of seeking to protect vulnerable groups that they warrant being included on a list that would cause automatic consideration of listing to take place. However …it will be important to ensure that any offences listed in the final version of Annex 3 are not then duplicated in the final version of Annex 4."
Police
Q8b Are there any offences identified in the Act which should not be relevant offences?
43% did not feel any offences should be removed and 25% were undecided, some of these organisations commenting that they felt they were not qualified to answer and/or needed more guidance.
6 (3%) of consultees highlighted a number of offences that they felt should possibly be excluded. These primarily related to areas where there could possibly be some ambiguity regarding whether the offence had a "victim" in the commonly understood sense of the word. These included laws relating to male homosexual behaviour, sexual activity of/ between young people and parts of the Mental Health Act. The inclusion of the Children and Young Persons (Harmful Publications) Act 1955 was also queried by a few organisations.
"Gross indecency with another male person."
Child Protection Committee
"Section 5 (1) Criminal Law Amendment Act 1985 - unlawful carnal knowledge of any girl under the age of 17 years (should only apply if the girl is under 16 years)"
Child Protection Committee
"Not so sure that 3.5 (intercourse with a girl under 16) or 3.9 (permitting girl under 16 to use premises for intercourse) are as serious as the others. Under 16's are given sex education and have access to contraception, Healthy Respect clinics etc. I worry that this sends mixed messages to young people who are likely to know about their rights to contraception etc. but maybe not be so knowledgeable about the potential for a criminal record and its impact on future career/employment."
Voluntary Organisation
"Mental Health (Scotland) Act 1984: Induces or knowingly assists people detained in hospital etc. to absent themselves; harbouring patients and Refusal to allow inspection of premises etc."
Voluntary Organisation
"A4 group 1 Section 33 "Causing or allowing children under 17 to participate in performances which endanger life and limb" May be used to prevent children and young people participating in adventure activities."
Voluntary Organisation
"It is not clear that it is necessary to retain the reference to the Children and Young Persons (Harmful Publications) Act 1955."
Council
3.6 Listing Decisions
Other than in cases of automatic listing, it was proposed that a three-stage approach would be used by the CBU to determine whether a person should be listed. This would consist of the application of rules-based criteria, caseworker assessment and expert consideration. Consultation participants were asked to comment on this approach.
Q 9 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 to be fair, appropriate and comprehensive.
"X is content with the decision making procedure outlined in 3.6 and in particular welcomes utilising expert consideration in reaching decisions on particularly complex cases.
Council
"In view of the significance of listing decisions, X agrees that all decisions should be underpinned by a robust quality checking procedure and endorses the three stage approach in the decision making process which will help to establish transparency, accountability and confidence in the system. It is right that individuals placed under consideration for listing have the opportunity to make representation to the scheme."
Voluntary Organisation
"It is important that organisations should not be deterred from undertaking particular projects, and individuals should not be deterred from volunteering by lengthy delays in the recruitment procedure. We therefore support the approach outlined in the consultation paper whereby only scheme records that disclose relevant offences and vetting information will be referred to the CBU for consideration. We also support the involvement of caseworkers to assess information and make decisions about the majority of scheme records that are referred."
Voluntary Organisation
Some consultees raised concerns related to:
- Robustness of Information and Process
- Issues of Professionalism
- Safe-guarding the Rights of the Individual
- Development of System over Time
- Clarity and Transparency
- Time Factors
- Employer Responsibility
Robustness of Information and Process
It was emphasised that both the procedure itself, and the resulting decisions must not only be robust, but must be seen to be so, in order to engender public confidence in the system.
"It is not clear what the last sentence on this page means: "All decisions will be underpinned by robust quality checking procedures recognising the significance of listing decisions." This system is cited as being "largely internal and administrative" therefore more information is required with regard to the robust checking procedures alluded to herein."
Child Protection Committee
"It is vital that decisions on listing are based only on robust, accurate and objective information. Whilst there may be appeal against listing, there is no appeal against wrong information that is held about an individual. There will be error and people will be severely damaged by such errors. The CBU must proceed only where the evidence is certain. Different regulatory bodies will have different standards and different standards of proof. The CBU must develop consistent standards which are independent of those of any regulatory body."
Education
"X remains deeply concerned by the lack of information regarding the CBU and the procedures, training and staffing of this unit. We seek, as a matter or urgency, clarification and explanation regarding this. We do not think that such a serious decision as barring someone from working in a whole sector of employment should be given to administrators, no matter how apparently simple the decision is, but should be made by people with relevant responsibility, expertise and experience in the area. It is essential that caseworkers are people skilled in carrying out risk assessments in relation to child protection and the management of sex offenders, and people who have an in-depth understanding of the information that will be available to them."
Voluntary Organisation
"(We are) Concerned that convictions are the principle criteria for assessing risk posed; research shows that the number of abusive periods is relatively greater than the number of convictions. Similarly ""time since last offence"" is equally unreliable; it might indicate only that the person has been successful in evading detection."
Voluntary Organisation
There was some concern noted by a few organisations that as the first stage was largely administrative in nature that it should not be seen as a tick-boxing exercise. Others queried whether such an approach could ever be appropriate:
"X is concerned that the proposed determination process is largely administrative using criteria unseen and untested. Applying criteria, however detailed, could lead to injustices as every case is unique and automating proceedings in this way renders them impervious to the unique circumstances surrounding each case. X believes that caseworker assessments cannot be meaningfully conducted without some element of investigation and suggests that an investigative approach is required to making listing decisions."
Regulatory Body
"Although we recognise that the process will be paper based and will not involve hearings, we were concerned that describing it as "largely administrative" could give the impression that it will be tick-box in nature which is clearly not the intention or the current practice in relation to maintenance of the children's list. We think it would be helpful to emphasise in further guidance about the Scheme that the listing determinations will be made by caseworkers with relevant experience and expertise who have been trained to undertake this work and that the process and the determinations will be regularly audited."
Regulatory Body
"I think the proposed process would allow cases to be considered fully - however, my concerns lie with the workload involved, and would not be happy if the process became a rubber stamping exercise."
Regulatory Body
Professionalism
Ensuring consistency was felt to be vital and the competency of the caseworker, approach and processes followed were therefore very important.
"There would need to be a system in place to ensure consistency of approach where there is caseworker assessment and there would need to be reassurance that the individual making the assessment was competent to do so."
Council
"… all those involved in listing decisions (must be) themselves disclosure checked/required to be scheme members."
Voluntary Organisation
"In the "Stage 3" box, the meaning of "expert consideration" is not explicit. Who will the experts be, and to whom will they be accountable? Councils would want to be assured that those considering the case at referral and individual representations (Appeal) stages have some child care/vulnerable adult operational background. A suggestion might be that cases that have been referred for listing are considered by a panel of Senior Operational Managers."
Council
The view that decisions should not be made by a single caseworker was reinforced by other organisations, particularly Councils.
"Case worker assessment seems to be inconsistent with the established practice of assessment by a group of professionals. Dependence on one individual is not reliable and leads to inconsistency."
Council
"No listing should be made by a single officer - there must be an endorsement or approval of a decision by a senior officer."
Council
"We are concerned that the decision making process may be more likely to harm individuals rather than safeguarding children or protected adults as the responsibility of listing decisions seems to lie with a single individual (i.e. the caseworker). There is little explanation of the nature of the expert consideration process and the procedures attached to this."
Health
Safe-guarding the Rights of the Individual
It was felt by some organisations that the rights of the individual required greater consideration:
"Our only comment is that checks are very thorough to make sure that the offences belong to the person concerned to ensure that there has not been a case of identity theft or mistaken identity."
Early Years
"X accepts the approach set out in paragraph 3.6 with the exception of the sub-paragraph which refers to "an individual being named in an Inquiry Report". This is qualified as something that would happen very rarely. However being named in an Inquiry Report offers an individual no automatic right of redress and to consider listing thereafter is a threat to natural justice."
Education
"(We are) concerned that there is no stated right of appeal after the decision, only the opportunity to make representations beforehand."
Regulatory Body
Development of System over Time
Some organisations approved of the principle of the development of expertise over time:
"The three stage process seems thorough with sufficient quality assurance checks built in. The system will build up expertise that will make for a fairer and more consistent approach than is currently possible which is to be welcomed."
Social Work
To others however, it was a source of some concern:
"X also considers that although it is reasonable for a new and complex system to expect that operational experience will affect the categorisation of offences and evolution of criteria, there needs to be a process of reviewing early decisions which may be based on factors and/or ability to appeal which subsequently change."
Regulatory Body
"We are concerned that risk management principles will evolve over time, which will affect consistency in decision making and may lead to earlier decision being appealed. Clarity and clear guidelines are required."
Council
"The last sentence of the "Stage 2" box is concerning as it implies better quality decision making can be expected over time. This leaves early scheme members open to question and users of the system potentially vulnerable. It is not clear from the text what is meant by "risk management principles".
Other
Clarity and Transparency
The need for clarity and transparency were felt to be vital for the process itself and for ensuring public confidence.
"We welcome the commitment to developing criteria against which decisions about unsuitability will be made…however…we urge the Scottish Government to publish this criteria to help with the transparency and public confidence in the Scottish Vetting and Barring Scheme."
Voluntary Organisation
Clarification was sought by a few organisations regarding particular aspects of the process:
"Clear guidance on what the criteria for adjudication is based is required. Also what mechanism of appeal is proposed to be set in place? Clarity would be welcomed on the terms "Risk Management Principles "Expend Consideration" and the concept of "robust quality checking procedure". The concluding sentence in Stage 2 reports "modification and improvement will be introduced at some later stage" but it would be helpful to clarify what interim process will operate meantime."
Child Protection Committee
"As there is not going to be an equivalent system for automatic consideration of listing in the courts where offences against adults have been committed, there is concern that the courts may not refer information about certain offences against vulnerable adults to the Central Barring Unit. There needs to be clarity about how the courts will make the initial referrals, and the criteria and any list of offences they will use, as well as information on the list of offences that the CBU will consider as warranting placement on the adult list. The ISA {[Independent Safeguarding Authority] scheme will contain a published list of serious offences where there is a right of appeal to listing, and these include offences against adults such as murder. There needs to be parity with the list of serious offences that the ISA will use for England, Wales and Northern Ireland and the list that CBU/courts will use in Scotland in considering whether someone should be barred from working with adults (albeit with a right of appeal)."
Social Work
"Concerned that convictions are the principle criteria for assessing risk posed; research shows that the number of abusive periods is relatively greater than the number of convictions. Similarly ""time since last offence"" is equally unreliable; it might indicate only that the person has been successful in evading detection."
Council
"We understand that the CBU will assess information which comes to light on an individual and this will include other offences not on the automatic barring lists. We assume that offences or misconduct on issues relating to finance - including fraud, deception, theft, and forgery - will be assessed on a case by case basis and it would be helpful to know if there will be a consultation on these guidelines or criteria. The established categories of abuse (sexual, psychological, physical, financial and neglect) provide a framework for assessing whether a person's history of offending and pattern of behaviour makes them suitable for work in community care. It is important the CBU reflects these concerns in its work and internal guidance."
Social Work
"It would be helpful for any guidance to make explicit that an individual's membership of the scheme does not imply suitability for regulated employment in order to avoid challenges to legitimate recruitment decisions based on vetting information"
Council
Time Factors
"Fitness to practise cases carried out by regulatory bodies may take a significant time to resolve and throughout this period, if the relevant regulator does not have interim suspension order powers, individuals may be still engaged in regulated activity and posing a risk to the public."
Regulatory Body
Employer Responsibility
It was noted by a few that the CBU processes did not replace an organisation's own responsibilities and procedures:
"It is recognised that, as with current disclosure procedures, it will continue to be necessary for employers to decide whether an individual is suitable for a particular post based on the information provided."
Regulatory Body
"(We) have concerns around some of the proposals for listing - we are concerned that organisations are not going to be informed fully of changes in vetting information held on a person if it is deemed not sufficient to consider listing them."
Voluntary Organisation
3.8 Removal from Lists
The process would also be used to review decisions and possibly to remove a person from the list at a later date, on application by the individual. A "no-review" period would apply to listed individuals and participating organisations were asked to consider the details of this in relation to the age of the individual and to how the period should be determined. It should be noted, however, that since listed individuals can apply to be removed from the list(s) at any time due to change of circumstance, the "no-review" period will otherwise be the period of time an individual is listed before they can make a competent application for removal from the list(s).
Q10 Should the age threshold for the shorter minimum no-review period be set at 18 or 25 years?
Q10 Opinion was very evenly split as to whether the age threshold for a shorter minimum no-review period should be set at 18 or 25, with 39% saying 18, 37% saying 25 and 25% not answering the question.
Consistency with legislation within both Scotland and the rest of the UK was seen as being the most important factor in deciding the age threshold. Social work (71%), Councils (69%) and Regulatory Bodies were the most likely to favour 18:
"Notwithstanding the arguments set out in the consultation relating to maturity and development, the answer to the question needs to be informed by consideration of business processes, in terms of consistency with other legislation. Whilst it would be desirable that Scottish legislation is consistent with similar legislation in other UK jurisdictions, in which the age threshold might be raised to 25, we consider it more important that the legislation be consistent with other, relevant, Scottish legislation. That being the case, we believe that the age be set at 18."
Child Protection Committee
"We consider that the age threshold for the shorter minimum no-review period should be set at 18 because that is the age of majority for other purposes in the Act and it is consistent with other relevant legislation, e.g. the Rehabilitation of Offenders Act 1974 and the Sexual Offences Act 2003."
Regulatory Body
Child Protection Committees (65%) and Education (46%) were the most likely to favour 25:
"To ensure there is not reluctance to list younger people because of the 10 year bar."
Child Protection Committee
"Setting the age threshold at 25 would help young people who are at a critical stage of their lives when they are embarking on careers. It will help those who have tried to turn their lives around. Therefore, while I appreciate the issues listed under "disadvantages", I believe they are outweighed by the advantages in giving young people the benefit of the doubt by setting 25 as the threshold." lives when they are embarking on careers. It will help those who have tried to turn their lives around."
Regulatory Body
"To ensure consistency across the UK and ensuring that young people in Scotland have the same rights as their counterparts in England and Wales."
Education
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?
Q11 There was most support for the minimum no review period to always start from the date of listing (39%). Child protection committees and Social Work were most likely to favour this option.
"The review is of the Listing process not the act or omission that led to the subsequent Listing…"
Protection Committee
"The decision to list will take into account the length of time since the offence/concern."
Early years
It was noted by some organisations that there have been more and more occasions in recent years where people were coming forward to report historical abuse. In such circumstances enquiries often revealed a history of offences none of which have previously been disclosed and which demonstrated a pattern of abusive behaviour. It was therefore important that the review period was set at the point of the evaluation of an individual's current risk to children and vulnerable adults.
"On a given date, a decision will have been made to include someone on a list. That indicates that, at that date, the person was considered unsuitable. That is so no matter when the person was convicted or when the incident took place. It follows, that if on that date the person was considered unsuitable, then that should be the date from which the no-review period should start."
Police
Those in favour of the minimum no review period starting from the date of the offence expressed concerns that a "reformed" individual may be unjustly penalised for offences committed in the distant past.
"Listing is not a punishment. It is intended to ensure a safe workforce for regulated work with children and protected adults, and it would not be reasonable to bar an individual from either workforce on the basis of an offence that took place more than ten years previously simply on the grounds that the individual has never previously applied to join that workforce. Note that this does not mean that the individual would automatically be free to join the workforce, simply that any continuing risk they might pose to children and/or protected adults would be eligible for immediate review."
Voluntary Organisation
It was also noted that:
"…. there are human rights and the rehabilitation of offenders' considerations which will have to be taken into account. The easier, but not necessarily the best, solution would be to say that the operative date will always commence from the date of dismissal/conviction and that the problems outlined could be overcome by setting an additional criterion that in historic cases, the minimum no-review period should be 5 years, irrespective."
Voluntary Organisation
There was concern that either the judiciary or CBU listing process could be prolonged and that an individual should not be penalised for any legal or administrative delays and that the date of the review period should therefore be related to the date of the offence.
"Starting the no-review period at the date of listing or the date of conviction could add an unfair and undue amount of time to that period due to legal delays in obtaining a conviction or in administrative delays in the CBU."
Voluntary Organisation
A smaller minority of organisations felt that the no-review period should start from the date of conviction:
"We need to avoid the perception that we want to punish an individual again for an act that we find repugnant. Punishment is the role of the courts. The approach here should be on the basis of ongoing risk taking account of how the person has behaved since the offence."
Council
Q 11b: Do you have any other comments on the proposals for applications for removal from the lists?
Consultees stated that the primary concern and focus must remain on the protection of children and vulnerable adults. Authorities and the general public need to be satisfied that removal from the list(s) is safe. It should be for the individual to apply for a review in every instance and a robust, meticulous and credible system put in place for reviews. Applications for removal from the lists should be based on an assessment of risk.
The no-review period is not to act as further punitive action, but rather to safeguard vulnerable groups. There was a need for complete clarity regarding the process from start to finish. Overturned convictions and cases of mistaken identity should be reflected by rapid removal from the list.
"The scheme requires to be sufficiently accessible and clear to ensure that everyone can determine with a high degree of certainty when and how his or her rights are likely to be affected. There are many individuals who may have committed offences in the past who will now face the risk that these matters will be used in some cases to justify their exclusion from the regulated work force."
Other
In relation to the proposed single review period:
"In order to maximize the protection of vulnerable groups, (our organisation) believes that the set 5 and 10 year non-review periods should be kept regarding both lists. We do therefore not support the proposed single minimum non-review period, as this may lead to an individual being removed from one list before the set period has run out."
Voluntary Organisation
A number of questions were also raised by a few consultees:
"… what type of evidence presented by an individual applying for removal from a list would be pertinent given that, by definition they would not have been entitled to have been working with children or vulnerable adults in the intervening period in order to evidence their rehabilitation?"
Education
"Will information be given to employers about the people who were previously on a barred list? Employers will want to know but this may colour their judgement on the suitability of the person. It will be difficult for such people to get into employment with vulnerable adults and children having once been on the list."
Voluntary Organisation
Chapter 3 Summary of Findings
3.2 Making Referrals
The majority of consultees (77%) felt the list of prescribed information was acceptable and proportionate. Although organisations were being asked to provide information that was already held, concern was expressed by some organisations that there would be pressure to collect more of this information and that the range of information could not be provided by many smaller organisations, particularly within the voluntary sector. It was felt that support and training would be required to assist these organisations.
The majority of consultees (60%) reported that they would not find it problematic to provide the information they already held. A few noted that this could have resource, data protection and information management implications that would need to be addressed. Some Regulatory Bodies reported that they did not hold employment details and would require powers to access this information from services if they were required to provide this information.
40% felt that the information requested was sufficient. 23% of organisations, primarily Child Protection, Police, Social Work and Education felt that further information could usefully be added to the list. This included further identification details of the individual referred (particularly photographic identification if available) details of the referring body/individual and any relevant historical information held.
3.4 Offences leading to Automatic Listing and Consideration for Automatic Listing
The majority of consultees (55%), from a cross-section of organisations, thought that individuals with convictions in any of the groups should be automatically listed on both lists. The key issue appeared to be the view that the issue was one of the vulnerability of the groups, regardless of age.
A minority of consultees felt that automatic listing should be kept to a minimum and individual referrals examined on a case by case basis.
A few consultees noted that there was a sexual focus in terms of the offences listed which excluded many other serious offences and felt that this could be difficult for the general public to understand. There was a need for a clear rationale and also consistency with the rest of the UK in the operation of the system.
Overall, consultees were undecided as to whether there were offences which should be added to the lists. The minority of consultees who did feel that there were some that could be included, highlighted serious crimes of violence, drug-related crime, certain types of dishonesty and newer sex-related internet offences.
43% of consultees did not feel there were any offences identified that should be removed although many people felt that this was a very complicated area. A minority of people raised issues relating to difficulties in application of some of these laws, including the potential criminalisation of some forms of gay male behaviour and also sexual activity/behaviour of/between young people.
Automatic Consideration for Listing
A clear majority (60%) of consultees, across all sectors, felt that the list of relevant offences against children set out in Schedule 1 should be expanded to include those set out in Annex 4 groups 2 and 3. It was felt that conviction for any of these offences indicated that an individual had already exploited a vulnerable person and therefore presented a potential future risk.
3.6 Listing Decisions
The majority of consultees found the proposed approach to be fair, appropriate and comprehensive. It was emphasised that the procedures must be robust in all aspects and administered with a very high degree of professionalism. Clarity and transparency of process were essential and the rights of the individual also needed to be safeguarded.
Some concern was expressed over the use of a single caseworker in Stage 2 of the process - the use of a panel of experts was felt to be better practice to ensure consistency of approach.
It was acknowledged that the system would develop over time and this raised some concern regarding the retrospective safety of earlier decisions and the potential for individuals to challenge them on this basis.
3.8 Removal from lists
Opinion was very evenly split as to whether the age threshold for a shorter minimum no review period should be set at 18 or 25, with 39% saying 18, 37% saying 25 and 25% not answering the question. Consistency with legislation within both Scotland and the rest of the UK was seen as being the most important factor in deciding the age threshold.
There was most support for the minimum no-review period to always start from the date of listing (39%). Child Protection Committees and Social Work were most likely to favour this option. The rationale was that the review was of the listing rather than of the offence(s) itself and that the listing process would consider the relevant time factors, including dates of offences and convictions.
A minority of consultees were concerned that this could have human rights implications if it led to a reformed individual being unfairly penalised for crimes committed a long time ago. It was crucial that the focus remained and was seen to remain on the protection of children and protected adults. Some consultees also felt that there was a need for a right of appeal before the final decision to list is made.
It was felt that it should be for the individual to apply for a review in every instance and a robust, meticulous and credible system put in place in which the public could have confidence. Overturned convictions and cases of mistaken identity should be reflected by rapid removal from the list.
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