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. In 2006 the Safeguarding Vulnerable Groups Act was passed wich replaces some aspects of the POCA and care standards legislation, but this does not come fully into force until 2010.
Protection of Children Act 1999, Care Standards Act 2000 & Safeguarding Vulnerable Groups Act (2006)
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. In 2006 the Safeguarding Vulnerable Groups Act was passed wich replaces some aspects of the POCA and care standards legislation, but this does not come fully into force until 2010 and there will be a 5 year transition period from 12th October 2009
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. Under the Safeguarding Vulnerable Groups Act (2006) the Independent Safeguarding Authority (ISA) took over the responsibility for creating & maintaining these lists, now known as the Barred Lists. Under the SVG act it will be illegal for anybody on the barred list to work with (or even apply to work with) children and/or vulnerable adults in a regulated role. It is also illegal for an employer to knowingly place a barred individual in a role undertaking regulated activity.
- 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. Again the SVG Act (2006) has supeceded this and from October 2009 all organisations placing individuals in regulated roles have a legal responsibility to report to the ISA any incident which resulted in an individual being removed from a role undertaking regulated actividy because of concerns that they posed a direct or indirect (through negligence) threat to the wellbeing of a child or vulnerable adult. This responsibility still applies if the individual left the role (or organisation) voluntarily prior to their being removed by the employer.
- 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). This data is now passed to the ISA.
- 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. From November 2010 this will apply to all employers and regulators who place or endorse and individual to work in a regulated role.
- 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. This has been extended in the SVG Act.
- Making it an offence for a person named on the list to apply for a position where they would be able to abuse. This has been extended in the SVG Act.
- Under the SVG Act (2006) from November 2010 it will be a legal requirement for organisations placing individuals in roles where they will be undertaking regulated activity to check that those individuals are ISA registered.
Although the legal requirement to obtain Disclosures 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. In line with this from November 2010 anybody working in a regulated role will need to be ISA registered.
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.
Whilst any employer or regulator can ask a current or prospective employee if they have any unspent convictions (and request a Basic Disclosure to verify their answer) where a role is exempted the employer or Professional Body is also entitled to ask about spent convictions. 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.
Under the SVG Act (2006) from October 2009 the eligibility to ask exempted questions was extended to anybody working on specified sites, such as schools and residential care homes, irrespective of the role.
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 can 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 74 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 |
| Any work which is defined as regulated activity relating to children within the meaning of Part 1 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 | 1 |
| Any work which is defined as regulated activity relating to vulnerable Adults within the meaning of Part 2 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 | 2 |
| Any office or employment which is concerned with the representation of, or advocacy services for, vulnerable adults by a service that has been approved by the Secretary of State or created under any enactment; and which is of such a kind as to enable a person, in the course of his normal duties, to have access to vulnerable adults in receipt of such services | 3 |
| Category codes 11 to 28 refer to all professions that are exempt from the provisions of the ROA. | |
| Category type | Category Code |
| Medical Practitioner | 11 |
| Barrister (in England and Wales), advocate (in Scotland), solicitor | 12 |
| Chartered accountant, certified accountant | 13 |
| Dentist, dental hygienist, dental auxiliary | 14 |
| Veterinary surgeon | 15 |
| Nurse, midwife | 16 |
| Ophthalmic optician, dispensing optician | 17 |
| Pharmaceutical chemist, Registered Pharmacists & Registered Pharmacy Technicians | 18 |
| Registered teacher (in Scotland) | 19 |
| Any profession to which the (Health Professions Order 2001) applies and which is undertaken following registration under that Act | 20 |
| Registered osteopath | 21 |
| Registered chiropractor | 22 |
| Chartered psychologist | 23 |
| Actuary | 24 |
| Registered foreign lawyer | 25 |
| Legal executive | 26 |
| Receiver appointed by the Court of Protection | 27 |
| Home Inspector | 28 |
| Category codes 29 to 58 refer to all offices, employments and work that are exempt from the provisions of the ROA 1974. | |
| Category type | Category Code |
| Judicial appointment | 29 |
| The Director of Public Prosecutions and any office or employment in the Crown Prosecution Service | 30 |
| Justices' chief executives, justices' clerks and their assistants | 31 |
| Clerks (including deputy and assistant clerks) and officers of the High Court of Justiciary, the Court of Session and the district court, sheriff clerks (including sheriff clerks deputy) and their clerks and assistants | 32 |
| Police constables or police cadets and persons employed for the purposes of assisting constables of a Police Force | 33 |
| Employment within the precincts of a prison, remand centre, detention centre, Borstal institution or young offenders institution, and members of boards of visitors (England & Wales) or of visiting committees (Scotland) | 34 |
| Traffic wardens | 35 |
| Probation officers | 36 |
| Any employment or other work which is concerned with the provision of health services and which is of such a kind as to enable the holder to have access to persons in receipt of such services in the course of his normal duties | 37 |
| Any occupation in respect of which an application to the Gaming Board for Great Britain for a licence, certificate or registration is required by or under any enactment | 38 |
| Financial Services position – This means all positions for which the Financial Services Authority or the competent authority for listings are entitled to ask exempted questions to fulfil their obligations under the Financial Services and Markets Act 2000 | 39 |
| Any occupation which is concerned with the management of a place in respect of which the approval of the Secretary of State is required by section 1 of the Abortion Act 1967 | 40 |
| Any occupation which is concerned with: · in England and Wales, carrying on a nursing home in respect of which registration is required by Section 187 of the Public Health Act 1936 or Section 14 of the Mental Health Act 1959, or · in Scotland, carrying on a nursing home in respect of which registration is required under Section 1 of the Nursing Homes Registration (Scotland) Act 1938 or a private hospital in respect of which registration is required under Section 15 of the Mental Health (Scotland) Act 1960 | 41 |
| Any occupation which is concerned with carrying on an establishment in respect of which registration is required by Section 37 of the National Assistance Act 1948 or Section 61 of the Social Work (Scotland) Act 1968 | 42 |
| Any occupation in respect of which the holder, as occupier of premises on which explosives are kept, is required by any Order in Council made under section 43 of the Explosives Act 1875 to obtain from the police or a court of summary jurisdiction a certificate as to his fitness to keep the explosives | 43 |
| Inspectors and other staff working for the Royal Society for the Prevention of Cruelty to Animals (the RSPCA) who, as part of their duties, may carry out humane killing of animal | 44 |
| Any office or employment or other work in the Serious Fraud Office | 45 |
| Any office or employment in the [Serious Organised Crime Agency, SOCA] | 46 |
| The Commissioners for Her Majesty’s Revenue and Customs and any office or employment in their services. The Director and any office or employment in the Revenue and Customs Prosecutions Office | 47 |
| Any employment which is concerned with the monitoring for the purposes of child protection, of communications by means of the internet | 48 |
| An individual designated under section 2 of the Traffic Management Act 2004 | 49 |
Court Positions
|
50 |
| People working in the Department of Children, Schools and Families (formally Department for Education and Skills), the Office for Standards in Education, Children's services and Skills or in the government Offices for the English Regions with access to sensitive or personal information about children or vulnerable adults. | 51 |
| Any office, employment or other work which is concerned with the establishment or operation of a database under section 12 of the Children Act 2004 , and which is of such a kind as to enable the holder of that office or employment, or the person engaged in that work, to have access to information included in the database. | 52 |
| Any office, employment of other work which is of such a kind that the person is or may be permitted or required to be given access to a database under section 12 of Children Act 2004. | 53 |
| Any work which is normally concerned with the provision of any form of information, advice or guidance wholly or mainly to children which relates to their physical, emotional or educations well-being and is provided by means of telephone or other form of electronic communication including the internet and mobile telephone text messaging. | 54 |
| The Chairman, other members, and members of staff (including any person seconded to serve as a member of staff) of the Independent Safeguarding Authority (formally Independent Barring Board). | 55 |
| Staff working within the Public Guardianship Office (to be known as the Office of the Public Guardian from October 2007) with access to data relating to children and vulnerable adults. | 56 |
| The Commissioners for the Gambling Commission and any office or employment in their services. | 57 |
Any employment or other work, where normal duties (a) involve caring for, training, supervising, or being solely in charge of, persons aged under 18 serving in the naval, military or air forces of the Crown; or (b) include supervising or managing a person employed or working in a capacity referred to in paragraph (a). |
58 |
| Category codes 59 to 74 refer to other activities for which you are entitled to ask a question that is exempted from the provisions of the ROA 1974 | |
| Category type | Category Code |
| A person living at the premises where a childminding or day care service is provided or who regularly works on the premises at a time when the childminding takes place. | 59 |
| A person living in the same household as a person whose suitability is being assessed for a position working with children and who lives on the same premises where their work with children would normally take place. | 60 |
| For National Lottery licensing purposes. | 61 |
| For the purpose of licensing hackney carriage or private hire vehicle drivers. | 62 |
| For the purpose of safeguarding national security. | 63 |
| For adoption purposes. | 64 |
| For foster caring purposes. | 65 |
| For the purpose of licensing under Section 8 of the Private Security Industry Act 2001. | 66 |
| For the award of public works contracts, public supply contracts and public service contracts in accordance with Directive 2004/17/EC and 2004/17/EC of the European Parliament and of the Council of March 2004(a) | 67 |
| Football Stewards, supervisors or managers of football stewards | 68 |
| Approved legal Services body Manager | 69 |
| The Commissioners for older people in Wales, his deputy and any people appointed by the Commissioner, to assist him in the discharge of his functions or authorised to discharge his functions on his behalf | 70 |
| Any employment or other work which is normally carried out in premises approved under section 9 of the CJ & CS Act 2000 | 71 |
| Any person who has applied to be granted membership of the Master Locksmith Association. | 72 |
| A regulated immigration adviser who provides immigration advice or immigration services under Section 82(1) of the Immigration & Asylum Act 1999(a). This also applies to persons who can act on behalf of and under the supervision of such a registered person. | 73 |
| Any person or body required to obtain or retain a licence under regulation 5 of the Misuse of drugs regulations 2001 (a) or under article3 (2) of regulation 2004/273/EC(b) or under article 6 (1) of regulations 2005/111/EC(c) | 74 |