|
Dear Chief
Officer,
This
Circular updates and replaces advice previously contained in Home
Office Circular 45/1986 about the disclosure of conviction and other
information in relation to people in professions or occupations
which carry additional trust or responsibility (often referred to as
"notifiable occupations").
2. The Circular is consistent with the
Code of Practice on the Management of Police Information
published by the Home Secretary in July 2005 under the Police Act
1996. This statutory code is part of the Government’s response to
the recommendations of the Bichard Inquiry into the circumstances
surrounding the conviction of Ian Huntley for the Soham murders in
late 2003. The Code, along with relevant guidance due to be
published on 31 March 2006, is designed to provide a common national
framework for the management of police information, highlighting the
importance of common standards in high risk areas of activity. The
Circular has been agreed with ACPO.
3. Home Office Circular 47/2003 provided
revised advice on arrangements for police checks to be carried out
in light of the establishment of the Criminal Records Bureau, and
cancelled relevant sections of HOC 45/1986. The remaining parts of
HOC 45/1986 not cancelled by HOC 47/2003 are hereby
cancelled.
The
general framework
4. The Notifiable Occupations
Scheme relates to professions or occupations which carry special
trust or responsibility, in which the public interest in the
disclosure of conviction and other information by the police
generally outweighs the normal duty of confidentiality owed to the
individual.
5. While there is no statutory
requirement for the police to share conviction or other information
about individuals with third parties, other than in the context of
Criminal Records Bureau (CRB) Disclosures under Part 5 of the Police
Act 1997, there is a common law power for the police to share
information for the purpose of the prevention and detection of crime
(each case being considered in its own individual circumstances).
6. The general position is that
the police should maintain the confidentiality of personal
information, but legal opinion supports the view that in cases
invoking substantial public interest considerations a
presumption to disclose conviction and other information to relevant
parties, unless there are exceptional reasons not to do so, is
considered lawful. Areas in which it is considered there are likely
to be substantial public interest considerations include:
· protection of the vulnerable, including
children;
· national security; and
· probity in the administration of
justice.
Sharing of
Information
7. Sharing of information within
these areas falls within the policing purposes set out at section
2.2.2 of the Code of Practice on the Management of Police
Information, (especially purpose c - preventing the
commission of offences). Nearly all the occupations involved in the
scheme are subject to pre-employment checks at the CRB Standard or
Enhanced Disclosure level or via another checking regime. The scheme
is referred to in section 6.3.2 of the guidance on the Code of
Practice.
8. Forces are requested to
notify the appropriate Government department, professional
regulatory/disciplinary body and/or the employer of conviction and
other information when it comes to notice that an individual is
working in one of the professions or occupations listed in Category
1 or Category 2 of Annex A:-
Category 1: Applies to professions or occupations
bearing special trust and responsibility where substantial public
interest considerations arise specifically in relation to:
· protection of the vulnerable, including
children;
·
national security; and
· probity in the administration of justice.
Where an occupation falls into
one of these three categories, there is a presumption to notify in
relation to all recordable convictions, cautions, reprimands and
final warnings; unless there are exceptional reasons which make it
inappropriate to do so.
Category 2: Applies to less sensitive professions
or occupations where probity and integrity may nevertheless be an
important factor in preventing crime. For example, this applies to
those with particular financial responsibilities. In these cases, a
test ofrelevance should be applied before the decision to
share conviction or other information is made. The test of relevance
should be under the same legal framework as that described in Home
Office Circular 5/2005 in relation to disclosure under section 115
of the Police Act 1997.
Volunteers
9. Volunteers working in areas
of employment or activity that fall under these two categories
should be treated in the same way as paid employees.
Convictions for
recordable offences
10. For occupations in Category
1, all convictions for recordable offences should be notified,
unless there are exceptional reasons not to do so. Exceptional
circumstances cannot by their nature be defined, but an example
might include a relatively minor offence which clearly has no
bearing on the person's employment. But there are also occupations,
for example magistrates - who sit in judgement over others - where
any conviction may reflect on their fitness to carry out their
duties.
11. For occupations in Category
2, the relevance test consistent with the legal framework set out in
HOC 5/2005 applies to recordable offences.
Convictions for minor
offences
12. Minor (ie. non-recordable)
offences, such as traffic offences that do not involve a prison
sentence or disqualification of licence, are not recorded on the
Police National Computer and need not generally be notified. If such
cases come to light, the relevance test consistent with HOC 5/2005
should in all cases be applied to occupations in both Category 1 and
Category 2.
13 As examples, in the cases of
bus drivers, members of the armed forces and others with special
responsibility for the safety of others, notification should be
considered if the offence could have a material bearing on the
individual’s work. As a specific example, where a teacher is known
to drive children in school transport even a minor motoring offence
may affect their fitness for this particular work. If a minor
conviction is also associated with other local intelligence, as in
the paragraph on ‘other relevant information’ below, further
consideration should be given as to whether disclosure is
necessary.
Cautions, reprimands and
final warnings
14. For occupations in Category
1, information should be notified about cautions, reprimands and
final warnings for recordable offences unless there are exceptional
reasons not to do so.
15. For occupations in Category
2, the relevance test consistent with the legal framework of HOC
5/2005 will apply to all non-conviction disposals for recordable
offences.
16. As with convictions for
minor offences, the relevance test should be applied prior to
notification of cautions, reprimands and final warnings for
non-recordable offences for all occupations in Category 1 and
Category 2.
Fixed penalty
notices
17. The issue of a fixed penalty
notice does not lead to a criminal record and should not generally
be notified. In addition, due regard should be paid to the
availability of fingerprint evidence confirming identity in such
cases. Fingerprints and DNA will normally be taken for recordable
offences but may not be available, particularly where the offence
has been dealt with out of custody. Regard should also be paid to
the fact that FPNs are not routinely included on CRB Disclosures.
18. The acquisition
of such disposals, however, particularly those for recordable
offences listed on PNC, could affect the assessment of the honesty
and character of an individual already working in a particularly
sensitive occupation. Should such a case come to notice and be
considered for notification, in all occupations listed in Categories
1 and 2 the relevance test should be applied, based on the legal
principles set out in HOC 5/2005.
Other relevant information from local
police records
19. Decisions on the sharing of
locally recorded and held police information need to be reached with
special care. The test of relevance based on the legal framework
described in HOC 5/2005 applies in all cases. The quality of such
information varies considerably, and proper evaluation should be
carried out in accordance with this guidance.
20. There will clearly be cases
where notification is appropriate - for example, where someone
employed to work with children or vulnerable adults is suspected of,
and has been arrested for, or charged with, an offence of violence
or a sexual offence. Even in cases still under investigation, if the
individual is considered to pose a risk to the vulnerable it would
be inappropriate to delay notifying the regulatory body or employer
until the person has been dealt with through the criminal justice
system.
Determining the nature of
employment
21. In some situations, the
nature of an individual’s employment will not always be clear. In
cases where the nature of the offence demonstrates a clear risk to
children or vulnerable adults, for example, a sexual or other
assault against a child, reasonable steps should be taken to
ascertain any employment or other activity which the individual may
be involved in (and which could provide a particular risk to
vulnerable persons).
Notification to the
employer in urgent cases
22. In especially urgent cases,
for example involving possible harm to a child or vulnerable person,
forces may consider direct notification to the employer (where
known) as well as to the regulatory/disciplinary body
concerned.
Further details on
Categories 1 and 2
23. Further details about the
list of professions and occupations in the scheme can be found in
Annex A.
Arrangements within
forces
24. The chief officer will wish
to decide who should make decisions on whether information should be
disclosed or not. The issue is likely to be most straightforward as
regards convictions of those listed in Annex A. Decisions as to
disclosure of soft information are likely to require closer
attention.
25. The chief officer will wish
to take these considerations into account in deciding upon local
arrangements and may feel that the more sensitive kinds of case
require a decision at ACPO level. In addition, in order to avoid
possible misunderstanding, it is good practice for the chief officer
to make the arrangements clear to all officers who may need to know.
Further
information
26. Any queries arising from
this Circular should be directed in the first instance to the
Criminal Records Section, Safeguarding Vulnerable Persons Team,
Police Leadership and Powers Unit, Home Office, Fourth Floor, Peel
Building, 2 Marsham Street, London, SW1P 4DF.
e-mail:
Michael.Brett-Pitt@homeoffice.gsi.gov.uk
or
Robin.Manson@homeoffice.gsi.gov.uk
Yours
sincerely,
PETER EDMUNDSON
POLICE LEADERSHIP AND POWERS UNIT
|