What are the legal aspects?
(for those that really want to know!)
This section covers the main pieces of legislation that brought the CRB into existence and governs the use of Disclosure information.
The key legislations are The Protection of Children Act 1999 and Care Standards Act 2000 and the Rehabilitation of Offenders Act 1974 and it's Exceptions Order(1975) plus subsequent amendments.
Protection of Children Act 1999 and Care Standards Act 2000
The legislation that created the CRB is the Protection of Children Act 1999 and this was subsequently joined by the implementation of the Care Standards Act 2000 which is the equivalent for vulnerable adults.
The key elements of these pieces of legislation are (get ready for the lawyer-speak!) :-
- A statutory requirement on the Secretary of State to maintain a list of persons who are considered to be unsuitable to work with children and vulnerable adults, known as The Protection of Children Act List. The POCA List migrated names of people previously on a list kept by the Department of Health, and who met the criteria of the POCA List. The Act also introduced a means of appealing against being included in the POCA List.
- A legal requirement on regulated (as defined by the act) care, health and educational establishments to report instances of actual and suspected (with grounds) abuse to the Secretary of State for consideration of including the name of person involved in the POCA List, plus the enablement of non-regulated organisations to do the same.
- Enablement of the Department of Education and Skills to identify people put on their list of persons considered not fit and proper to work with children, known as List 99. (Previously this had been for internal use only).
- Establishment of the Criminal Records Bureau as the means of access to the above lists, along with the details of any convictions, cautions, reprimands and warnings held on the Police National Computer (PNC) and possibly information held by the Chiefs of local police forces pertaining to the suitability of individuals to work with children and vulnerable adults e.g. Details of current investigations or pending prosecutions.
- A requirement for regulated (as defined by the act) care, health and educational establishments to check the names of applicants for childcare positions (as defined by the act) with the CRB
- Creating an offence of knowingly employing (in a paid or unpaid capacity) a person named on the list in a role where they would have opportunity to abuse
- Making it an offence for a person named on the list to apply for a position where they would be able to abuse.
Although the legal requirement is limited to “child care” and "vulnerable adult care" institutions as defined by the act, the Government has made it clear that their intention was that these practices should be adopted by all organisations who place people in roles which give them access to children and/or vulnerable adults.
This includes organisations ranging from the smaller voluntary organisations through the “uniformed” youth activities (Scouts, Guides, Cadet Forces etc) to national and local youth clubs and religious organisations, along with the whole range of sporting and leisure activities undertaken by children.
Having legislated to create a source of information on all criminal records plus lists of known abusers or those considered to have a criminal background that made them unsuitable to work with children or vulnerable adults, the Government had to provide access to that information in a way that minimised the violation of the rights of those individuals being checked against the lists, as enshrined in the Rehabilitation of Offenders Act 1974.
Rehabilitation of Offenders Act (1974) and Exceptions Order (1975)
The ROA was put on the statute books to ensure that a person who has been convicted of a criminal offence in the past and who has not re-offended in a specified period is freed from the stigma of that conviction – as far as possible.
However, it was recognised that for certain specified roles it was important that all previous convictions could be made known to the organisation offering the role, hence an Exceptions Order was introduced in 1975 to list those roles. Since 1975 new roles have been added to the Exceptions Order such as certain security staff and certain postal workers.
Spent & unspent Convictions
If an offender stays on the right side of the law for the specified time after their conviction, it becomes “spent” and it is illegal for employers to either ask the ex-offender to reveal it nor consider it (if they were aware of it as an unspent conviction) in recruitment, promotion or dismissal situations.
The period that must elapse for a conviction to become spent depends on the severity of the sentence and the age of the offender at the time of conviction. An overview is provided below and the full list is available from HMSO or the Disclosure Web Site.
| TYPE OF SENTENCE IMPOSED on adults aged 18 and over at the time of sentencing | NUMBER OF YEARS from date of conviction BEFORE CONVICTION BECOMES SPENT |
|---|---|
| Imprisonment or detention in a young offender institution (previously known as youth custody) between 6 and 30 months | 10 years |
| Imprisonment of detention in a young offender institution (previously known as youth custody) of 6 months or less | 7 years |
| A fine or any other sentence for which a different rehabilitation period is not provided (eg: a compensation or community service order, or a probation order received on or after 3 February 1995) | 5 years |
| An absolute discharge | 6 months |
Except for an absolute discharge, all of the periods above are halved if the person convicted was under 18 at the time. So, if a person was under 18 and received a probation order on or after 3 February 1995, the rehabilitation period would be 2 1/2 years or until the order expires - whichever is longer.
In the past there were sentences that could be imposed only on young people. The rehabilitation periods for sentences like this are as follows.
| TYPE OF SENTENCE IMPOSED on young people aged 18 and under at the time of sentencing | NUMBER OF YEARS from date of conviction BEFORE CONVICTION BECOMES SPENT |
|---|---|
| Borstal | 7 years |
| Detention Centre | 3 years |
| An order for custody in a Remand Home or an Approved School order | 1 year after the order expires |
Some sentences like this carry variable rehabilitation periods.
| TYPE OF SENTENCE IMPOSED on young people aged under 18 at the time of sentencing | NUMBER OF YEARS from date of conviction BEFORE CONVICTION BECOMES SPENT |
|---|---|
| A probation order received before 3 February 1995, a conditional discharge or a bind over | 1 year, or until the order expires (whichever is longer) |
| A care order or supervision order | 1 year, or until the order expires (whichever is longer) |
| An Attendance Centre order | 1 year after the order expires |
| A Hospital order (with or without a restriction order) | 5 years, or 2 and a half years after the order expires (whichever is longer) |
Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975
Whilst the Rehabilitation of Offenders Act is the primary consideration for employment law, the Government of the day recognised that there are roles where the protection of the innocent should over-ride the rights of the ex-offender and these roles were exempted from the ROA.
To ensure that only specified roles were exempted, an Exceptions Order (to the ROA) was put on the statute books in 1975 which lists the specifically exempted roles. It has been revised a number of times since, the most recent to include door security operatives and certain postal workers.
Where a role is exempted the employer or Professional Body is entitled to ask about the unspent convictions and spent convictions of an applicant or existing employee (the latter with care). The questions relating to spent convictions have generally become known as “exempted questions”.
The major exceptions to the ROA are for people working with children in a caring or educational (including coaching) role and people working in the health service – private or NHS.
Another excepted group are the regulated Professions – Chartered Accountant, Lawyer, Medical Practitioner, Dentist, Veterinary Surgeon, Nurse, Pharmaceutical Chemist etc. However, being regulated, only the professional bodies of these people can ask about spent convictions. The principle here is that those using such professionals are to assume that their being a member of the professional body makes them suitable to work in their professional capacity with anybody. Working outside their professional capacity is not covered so a lawyer who coaches youth football would still need to be checked.
The last general grouping is the judiciary and police including traffic wardens and probation officers.
A full list of the “employments and positions” exempted from the Rehabilitation of Offenders Act 1974 is available from DDC or HMSO.
Implications... for employers requesting Disclosures
Criminal Record Bureau Disclosures contain sensitive information which must be controlled, so the CRB require organisations applying for Disclosures to register and adhere to their Code of Practice for storing and disseminating Disclosure data. Misuse of Disclosure information is a criminal offence carrying a penalty of up to 6 months in prison and/or a significant fine. The perpetrator is also exposed to a civil action from the victim.
As sensitive data, CRB Disclosures are also covered by the Data Protection Act which has it's own set of requirements and penalties.
Unless it is imposed by law, introducing the requirement for having existing staff checked (even if it is imposed from outside the organisation) is also a difficult issue since it is likely that existing contracts of employment do not incorporate such a requirement and changes to the CoE usually require some co-operation from the employee.
To ask for a Standard or Enhanced Disclosure an employer (offering a paid or unpaid position) must have defined a position that entitles them to ask “exempted questions” as specified in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and subsequent revisions. The CRB currently defines 57 categories of position that are exceptions to the ROA but outside the “Professions” that can only be checked by their professional body and the judiciary, police and specialist roles there are 10 categories that might affect an employer.
These are :-
| Category Type | Category Code |
|---|---|
'Working with children' For the purpose of the ROA 1974 (Exceptions) Order 1975, the definition of 'working with children' includes any work that is:
The regulated positions that are exempted from the provisions of the ROA are specified by category codes 01 to 08 below. A position involving work in a further education institution is specified by category code 09. You should select the code that most clearly identifies the position for which you are asking an exempted question. |
|
A position whose normal duties include work in one of the following establishments:
|
01 |
| A position whose normal duties include work on a day care premises | 02 |
| A position whose normal duties include caring for, training, supervising or being in sole charge of children. | 03 |
| A position whose normal duties involve unsupervised contact with children under arrangements made by a responsible person. | 04 |
| A position whose normal duties include caring for children under the age of 16 in the course of the children's employment. | 05 |
| A position whose a substantial part of normal duties includes supervising or training children under the age of 16 in the course of the children's employment. | 06 |
One of the following positions:
|
07 |
| A position whose normal duties include supervising or managing an individual in his work in a regulated position | 08 |
| Work in a further education institution where the normal duties of that work involve regular contact with persons aged under 18. | 09 |
'Working with vulnerable adults': For the purpose of the ROA 1974 (Exceptions) Order 1975, a person who regularly cares for, trains, supervises or is in sole charge of vulnerable adults of the following description is entitled to an ENHANCED DISCLOSURE. A vulnerable adult for the purposes of an Enhanced Disclosure is a person aged 18 or over who receives services of a type listed in paragraph 1) below and in consequence of a condition of a type listed in paragraph 2) below, has a disability of a type listed at 3) below: 1. The services are:
2. The conditions are:
3. The disabilities are:
The following type of position attracts a STANDARD DISCLOSURE:
|
10 |