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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
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