1.  HISTORY AND PRINCIPLES

  In 1983 a child was abducted, sexually assaulted and murdered; the offender had been able to obtain work as a baby-sitter despite a long criminal record of serious offences against children. This prompted a Home Office review which in 1985 recommended disclosure arrangements for child protection, which are essentially those currently in operation.

  The arrangements set up since 1986 by agreement with the Association of Chief Police Officers (ACPO) allow for checks to be made of national and local police records on certain new recruits to the public sector whose jobs would give them substantial unsupervised access to children, on volunteers directly engaged by public sector bodies and in respect of adoption/fostering. The checking arrangements have also subsequently been extended to staff in registered voluntary and private residential homes. However, much of the voluntary sector and the remainder of the private sector do not have access to checks. Similarly many other groups, such as those caring for those members of society who are vulnerable because of age, illness or disability, are excluded from the current arrangements.

  In practice the picture is somewhat more complicated. In recent years there has been a growing demand for criminal records checks in support of provisions which require a public employer or licensing authority to establish whether people are "fit and proper persons" to hold certain kinds of licences or fulfil certain tasks. The police have always resisted the premise that the existence of a statutory "fit and proper" person requirement should automatically entail the disclosure of criminal records.

  In addition there are local and national schemes, which have no statutory basis, in which the police provide criminal record checks for certain categories of private employment. Examples are schemes which exist in some areas for vetting night-club doormen, and the scheme (which has national coverage) to vet employees of firms which install burglar alarms. The criterion which underlies these schemes is crime prevention, rather than one of the three original criteria:

—  national security;

—  protection of vulnerable members of society; and

—  the need to ensure probity in the administration of law.

  Arrangements for discretionary disclosure have been developed in a series of Home Office Circulars (Annex 1).

  In order to provide consistency in the application of policy on disclosure of criminal records, a Standing Sub-Committee of ACPO meets at regular intervals to review policy and consider requests for new proposals for vetting made by outside bodies or individual police forces. These arrangements do not preclude individual forces establishing particular local schemes where they see the need, although it is thought that such schemes are rare. However, it is understood that in all instances the decisions—both on policy and on individual disclosure—are ones for the chief officers of police, and Ministers have no powers to intervene.

  At the present time there is no official definitive list of those categories which have been approved either by means of Home Office Circular or by the ACPO Sub-Committee on Disclosure of Convictions.

2.  WHAT DOES A CHECK ENTAIL?

  Home Office Circular 45/1986 indicates that where the person subject to vetting would have substantial access to children, the police should at their discretion provide details of:

—  past convictions;

—  cases pending;

—  such other factual background material such as would be admissible in court or on sub-poena before a statutory tribunal;

—  cautions;

—  bind-over orders;

—  where readily accessible, cases recorded as detected where no proceedings were taken; and

—  HOC 102/88 subsequently added acquittals or decisions not to prosecute where the circumstances of the case give cause for concern.

  Police forces are advised to consult both their own records and the national record; they are also expected to seek information from any other police forces in whose area the person may have lived at any time during the past five years.

  The applicant must give permission in writing before a police check can be carried out. It is for the prospective employer to take appropriate steps to establish an applicant's identity. Participating agencies/authorities are required to provide indemnities and channel enquiries through "nominated officers" who are senior officers within those organisations charged with adhering to the criteria and procedures set out in the Home Office Circulars.

  HO Circulars indicate that before a decision is made to request a vetting check, the following should be considered:

—  does the position involve one-to-one contact?

—  is the position supervised?

—  is the situation an isolated one?

—  is there regularity of contact?

—  are the children particularly vulnerable?

  However, the tendency to regard police checks as a means of ensuring that prospective employees are "safe" may cause employers to seek checks on a wider range of posts than is justified. The role of "gatekeeper" then falls by default to police forces; it is possible that some forces may apply the criteria more strictly than others, leading to divergence in practice between neighbouring forces.

  Vetting checks must not take the place of normal recruitment procedures. Requests for checking must not be made when interview short lists are being drawn up but only when the final candidate has been selected, and only in respect of that candidate. Police cannot be certain that this criteria is always applied.

  When checks are conducted on people in the voluntary sector, the information is channelled through the Voluntary Organisations Consultative Service (VOCS) and is passed on to those responsible for recruitment in the individual voluntary agencies. Similarly information on teachers in private and opted out schools is channelled through the Department of Education.

  HOC 44/86 provided that students and trainees may be checked when engaged for limited periods of practical work as part of their training or for work experience. HOC 102/88 subsequently indicated that student teachers, student nursery staff and others employed for limited periods of practical work as part of their training, or for work experience, should not be checked unless other evidence available to a local authority suggests that there may be cause for concern in a particular case, since checks on these people will be carried out when they obtain their first full time employment. However it is understood that a large number of requests have been received from the Department of Education in respect of students, eg NNEB, etc.

  Where there are discrepancies between the information provided by the applicant and that in the police record, the prospective employer should provide the subject the opportunity to challenge the accuracy of what is said about him/her. Queries should be channelled back to the police via the prospective employer not the individual. It is clear from the communications received from the subjects of such checks that not all participating agencies are aware of/follow the correct procedure.

  All information is provided subject to a qualification that "without fingerprint identification police cannot say definitely that the convictions relate to the individual".

3.  HOW IS IT CARRIED OUT?

  Upon receipt, each request form is date stamped and processed in strict date order; no preferential priority is given. Each request is numbered and logged on a computerised tracking system which is updated at each process stage from date of receipt to date of completion of search(es) and return to enquiring authority.

Checks for Local Authorities/Agencies

  The details supplied on the vetting form are first matched against the in-force Criminal Justice computer system to ascertain whether any cautions have been recorded in the past five years. Where a possible match is identified, deatails are transferred onto a proforma (hand-written).

  The national PNC system is then checked (NB not all convictions are accessible on computer, some being retained manually on microfiche at the National Identification Service in London):

—  if no match is found on PNC—the "no trace" box on the form is ticked appropriately;

—  if a possible match is found on PNC and full details are available on PNC, a disclosure printout is obtained and the form endorsed "subject appears identical with";

—  if a possible match is found on PNC and the convictions are not readily available, it is necessary to request a copy of the microfiche record; the facility to perform this request is available electronically on PNC. When the microfiche is received, the contents are printed and relevant sections highlighted before being passed for typing; the typed copy is then checked for accuracy and attached to the original request form, which is endorsed "subject appears identical with".

  All responses are stamped as appropriate:

—  No Trace—"Minor convictions not recorded may exist"

—  Trace—(three stamps):

  —  Data Protection Act confidentiality warning;

  —  "Subject may be identical with";

  —  "Attention is Drawn to Rehabilitation of Offenders Act, 1974".

  Completed forms are signed by the office supervisor and returned (together with copy convictions) to the enquiring authority.

Checks for other Police Forces

  Since the requesting Force already has access to national PNC criminal records, the only check carried out is to ascertain whether any cautions are recorded on the in-force Criminal Justice Department system. In the event that a match is found, details are recorded onto a proforma (hand-written), which is endorsed with appropriate stamps (as above) and returned to the originating force.

  Statistics are retained for Home Office use.

1. VOLUMES AND RESOURCES

Estimated time taken to process each check:

  7-10 minutes: if no D/F (NIS) check required

  40 minutes: if D/F (NIS) check required (actual working time; on average D/F checks take approximately one week from request to receipt).

  An estimated five per cent of total requests are returned uncompleted to nominated officer. There are two main reasons:

1.  checks do not fall within approved criteria/clarification of post needed;

2.  application form inadequately completed/additional information needed for identification of individual;

  Gwent Police currently carry out vetting checks in respect of 22 registered authorities, involving 110 authorised nominated officers.

5.  ONGOING REPORTING OF CONVICTIONS AND CAUTIONS

  Under the provisions of Home Office circular 45/86 ongoing arrangements also exist for the police to report to employers or other responsible bodies when convictions are recorded against child-care workers and other categories such as civil servants, doctors, dentists, barristers and magistrates. It would appear that some of these categories are not subject to initial criminal record checks on appointment, and some of the categories liable to criminal record checks on appointment are not liable to have ongoing new convictions reported.

 6.  HOW USEFUL ARE CRIMINAL RECORDS CHECKS?

  A Home Office consultation paper presented to Parliament in September 1993 indicated that the high level of demand for criminal record information is not necessarily a reliable indicator of its value as a predictor of future criminal behaviour. Since police currently provide vetting free of charge, users have not needed to consider the cost-effectiveness of the process. It is possible that many organisations, especially in the child protection field, carry out vetting checks as much to demonstrate that they have taken all reasonable steps to protect those in their care as to add useful information to what they already know about their applicants.

  Some benefits are clear:

—  They are likely to deter many of those with a criminal record from even applying for certain posts.

—  They help to identify those applicants who, because of their criminal background, are likely to be unsuitable or pose a risk.

—  They provide some reassurance to the public.

  However, criminal record checks also have a number of possible disadvantages:

—  They may tell only a small part of the story—the criminal record represents only a fraction of offences which may have been committed—many of the most disturbing cases involve people with no previous convictions. In addition administrative errors can result in non-recording of impending prosecutions and subsequent convictions.

—  They are poorly targeted—in 1992, research evaluation of criminal records checks within the voluntary sector pointed out that whereas 98 per cent of sex offenders were male, 68 per cent of those checked were female.

—  Different employers may take different views about the significance to be attached to particular offences.

—  They can lead to complacency—a misguided assumption by employers that their staff are "safe". This can result in failure to implement other recruitment and management safeguards such as following up references and providing supervision.

—  They may prejudice those who have not been checked—some authorities refuse to allow unchecked volunteers near children for whom they have responsibility.

—  They may be worthless unless proper steps are taken independently to verify identity—given that fingerprints are not used to establish identity, checks can be (and have been) subverted by a determined subject who has concealed his real identity. Similarly, there have been many cases of mistaken identity where convictions have been attributed to innocent people.

—  They may deter people from applying for posts for which they would be quite suitable—this could be due to embarrassment at the prospect of revealing irrelevant convictions.

—  They may raise civil liberties concerns.

7.  CAN THE POLICE IMPOSE A CHARGE FOR CHECKS?

  The 1996 Home Office White Paper "On the Record" indicates that police forces nationally are not permited to charge prospective employers for providing employment vetting checks. It is understood that the ACPO Sub-Committee on Disclosure of Convictions has on several occasions explored with the Home Office/Local Authority Associations etc the possibility of imposing a charge but . . . "unfortunately it had to be conceded that there is no legal process to charge for such a facility without it being changed through primary legislation"—ACPO minutes.

  This view has recently been reiterated by Brian Binks of Nottinghamshire Police, who acts as secretary to the ACPO Disclosure of Convictions Committee . . . "there is no statutory provision enabling the police to charge for vetting checks". This appears to be based on the premise that statutory provision is required to say that we may charge, as opposed to statutory provision to say that we may not. However, there is provision within the Police Act 1997 which will enable the proposed Criminal Records Agency to levy a charge (see later section).

  It was estimated in 1993 that if a full charge were to be made for vetting it would need to be of the order of £12 for a national check and £17 for a full check involving both national and local records. Obviously current costs would be considerably higher.

8.  ARE POLICE VETTING CHECKS LEGAL?

  The basis of current policy is Home Office Circular 45/1986 which gave effect to new arrangements for checks on those with substantial opportunities for access to children, and which formed the platform for all subsequent related HOCs.

  However, it is understood that in May 1998 the Home Office communicated to the ACPO Sub-Committee on Disclosure of Convictions concerns that this document may no longer represent a correct statement of law. "Home Office legal advisers have indicated that there is no statutory basis for the police to notify employers or professional bodies about convictions. In order for disclosure to be lawful, it must be compatible with the Data Protection Act and the European Convention on Human Rights. It is arguable that the suitability of a person to remain in a particular profession or office is not synonymous with the prevention or detection of crime. A review of HOC 45/86 will become necessary, given that the provisions of Part V of the Police Act 1997 mean that the circular may no longer represent a correct statement of law. Preparation by the Home Office of general guidance on the disclosure of information about offenders is also likely to require amendments to the Circular"—ACPO minutes.

  It is understood that the Sub-Committee has agreed that the Home Office should look at the lawful basis of the circular in the light of the Police Act and to revisit the list of professions contained within the Schedule to the Circular. The Home Office has agreed to progress this by setting up a working party to give consideration to all the issues involved.

9.  REHABILITATION OF OFFENDERS

  The purpose of the Rehabilitation of Offenders Act 1974 (ROA) is to help ex-offenders live down their past. After varying periods of time, depending on the sentence imposed and whether they have re-offended, offenders become rehabilitated and the conviction(s) become spent. Convictions attracting a sentence of more than 2½ years imprisonment never become spent.

  The Act provides that a spent conviction need not normally be disclosed when a person is asked about his previous record, and a rehabilitated person cannot be prejudiced if the spent conviction later comes to light. However, the Exceptions Order 1975 creates a number of exceptions in the interests of national security, protection of particularly vulnerable membes of society such as old, young, sick and handicapped, maintaining confidence in the administration of the law and in certain licensing systems, and ensuring probity in banking and financial services.

  It is understood that at present those categories subject to vetting are not necessarily the same as those categories which are exceptions to the provisions of the Rehabilitation of Offenders Act 1974 (ROA) although there is considerable overlap between the two groups. It would appear, for example, that whereas most people working with children are both exceptions to the provisions of the Act and subject to checking, a number of professions such as solicitors and doctors are exceptions to the provisions of the Act but not subject to checking, and some groups subject to checking (such as taxi drivers) are not exceptions to the provisions of the Act. The fact that there is an exception under the Act confers no right of access to the police record to check the truth of any statement made. This situation may cause misunderstanding and confusion in practice.

10.  "ENFORCED SUBJECT ACCESS"

  The present vetting system, in which criminal record checks are only available to employers for certain types of staff, has led to a nation-wide abuse of the subject access rights available to individuals under the Data Protection Act 1984 (DPA).

  Under the existing DPA, individuals can apply for a copy of information held about them on police computerised records; this includes access to criminal records. Increasingly prospective employers and others (such as overseas Governments who require information about prospective immigrants) who have an interest in establishing whether individuals have a criminal record, often require them to make an application for this information under the DPA. This practice, known as "enforced subject access" has become a significant resource issue for the police; an allied concern is that since it elicits both spent and unspent convictions it clearly undermines the Rehabilitation of Offenders Act. Following concerns expressed by both the Data Protection Registrar and ACPO nationally, the Government proposes under new Data Protection legislation to criminalise this practice (Section 56 of the Data Protection Act 1998). Unfortunately, although the proposed implementation date of the new Data Protection Act is April 1999, it is now clear that the provisions of Section 56 will not take effect until implementation of Part V of the Police Act 1997—guestimate late 2001—which provides for the setting up of a Criminal Records Agency (see below). In other words "enforced subject access" will remain lawful for a further three years.

  Current (1984) data protection legislation provides for a charge to be made for subject access. The Government has indicated that under the 1998 Act it does not propose to change either the current £10 maximum fee or the requirement to meet the request within 40 days. However, it is not yet clear whether changes to the current data protection registration system will enable applicants to request details of all data upon payment of a single fee of £10, as opposed to the current system by which data users are able to charge £10 per registration. The resource implications are readily apparent, and it is understood that discussions between the Government and Data Protection Registrar are still taking place.

  It is anticipated that the number of requests for subject access will drop when the Criminal Records Agency is set up (see below). However, the fees for the service to be provided by that agency have yet to be set; if they are greater than the £10 charged for subject access, it is possible that the subject access system may continue to be abused, albeit then illegally.

  The number of subject access requests received in Gwent continues to rise:

1993	59
1994	126
1995	206
1996	362
1997	464
1998 (to date)	549

  Although some requests involve local computer systems (eg incident logging), the majority are for conviction data, in which case the National Identification Service invoices Gwent for the £10 fee; substantial administration costs are therefore incurred by police forces nationally.

 11.  CRIMINAL RECORDS AGENCY

  Existing arrangements for vetting checks impose a considerable burden on police resources which might otherwise be devoted more directly to fighting crime and other core police tasks. As previously indicated, under the provisions of Part V of the Police Act 1997 it is proposed to set up a Criminal Records Agency (CRA) which will handle many of the enquiries for pre-employment and licensing checks currently carried out by police forces.

  Three types of criminal check will be available in response to a written application by the individual (Annex 2).

  Although the CRA will have direct access to information held on Phoenix, it will liaise with local police forces when information held on local records is needed ("enhanced checks"). The Agency will be self-financing on the basis of fees received. Employers or licensing bodies involved in areas requiring pre-employment access to "full" and "enhanced" checks will be required to register with the Agency; they will also have to sign up to a Code of Practice regulating the use of criminal record information in order to enable their prospective employees or licensees to apply for fuller checks.

  It has been intimated that checks carried out on behalf of the Criminal Injuries Compensation Board and in respect of firearms and explosive licensing will continue to be dealt with locally by the police.

  Although the 1998 DPA will criminalise "enforced subject access" it is not clear whether it is proposed to afford individuals any protection from "enforced" requests from prospective employers for CCC certificates available from the CRA in respect of those categories of employment which do not involve caring for the vulnerable, or whether/how this will impact upon employment law.

Ms J Webster

T/Deputy Chief Constable

19 November 1998