Development of Barring Criteria for the Protection of Vulnerable Groups Scheme

1. Development of Barring Criteria for the Protection of Vulnerable Groups Scheme Voluntary Sector Issues Group 16 February 2009

2. The Context • There are currently no national/international validated risk assessment tools for employment screening. • There is limited research in relation to abuse/ harm in the workplace and organisational settings. • The available evidence base for risk primarily focuses on the convicted population and mainly in relation to sexual or violent offending. • The process must lead to a decision about unsuitability (decisions about suitability remain the responsibility of the employer). • A system which needs and supports a case by case approach. • Consistency in decisions by Disclosure Scotland and the Independent Safeguarding Authority (England, Wales and Northern Ireland).

3. The Context • All decisions must be fair, robust, transparent and consistent. • Disclosure Scotland must be able to demonstrate there is sufficient evidence to support a decision that the individual is unsuitable. • The burden of proof for establishing that an individual is unsuitable rests with Disclosure Scotland in all cases. • The decision will be based on information gathered from relevant sources and taking account of the referred individual’s representations. • Learning from the experience of operating the Disqualified from Working with Children List.

4. Referrals to DWCL Total number of referrals 482 (Court 203, organisational 279) Dismissed by Casework Team 104 (legally incompetent or tests not met) Individuals fully listed by Panel 100 Cases dismissed by Panel 45 Total number of individuals listed 303

5. Learning from DWCL • Range of child care positions • Quality of referrals from organisations • Range of harm • Range of factors considered by Panels • Duration of provisional listing • Quality and quantity of representations by individuals

6. PoCSA Children’s list Can only be considered for barring following a referral Referral by a court always leads to listing Decisions always made by Panel PVG Scheme Children’s and Adults’ lists Consideration on application to join Scheme New sources of vetting information Decision always made by Disclosure Scotland On going monitoring What’s different?

7. POCSA triggers for determination process Court referral Organisational referral Regulatory Body referral Employment Agency referral Individual named in relevant inquiry PVG triggers for determination process Conviction of automatic listing offence Conviction of a relevant offence Schedule 1 Discretionary Court referrals Organisational referral (criteria extended) Regulatory body referral Employment Agency referral Individual named in relevant inquiry Vetting Information

8. Automatic Listing Short list of serious sexual and violent offences e.g. rape, murder of a child. Unambiguous unsuitability to work with vulnerable groups . No determination process required due to nature of offence(s). Conviction of one of these offences after Scheme goes live will lead to automatic listing. Historical convictions of these offences will be dealt with through vetting information or organisational/ regulatory body referral. Individual has no opportunity to make representations.

9. Relevant Offences (Schedule 1) • E.g. cruelty to children under 16, possession of child pornography. • Conviction of a relevant offence after Scheme goes live will automatically lead to formal consideration for the children’s list. • Individual can also be considered for listing on adults’ list where regulated work test is met. • Historical convictions of relevant offences will be dealt with through vetting information or organisational/ regulatory body referral. • Individual has opportunity to make representations.

10. Discretionary Court Referrals • Courts have the power to refer following conviction of any other offence where it is satisfied “that it may be appropriate for the individual to be listed” in either, or both lists. • Individual must meet the regulated work test. • Disclosure Scotland will make the decision about listing. • Individual has opportunity to make representations.

11. Organisational Referrals • Where the criteria in section 2(a) and/ or section 2(b) PVG Act is met. • Casework team will apply the initial competency tests. • Casework team must then decide whether the individual should be placed under formal consideration for listing in either, or both, lists.

12. Vetting Information (Section 49 PVG Act) • Conviction information • Information about notification requirements under Part 2 of the Sexual Offences Act 2003 e.g. registered sex offender, Risk of Sexual Harm Order, Sexual Offences Prevention Order • Police Intelligence • Such other information as may be prescribed

13. Structured Decision Making Process (SDMP) • Stage 1 Assessment- actuarial approach. • Stage 2 Assessment- application of professional judgement. Individual is now under consideration for listing. • Stage 3- Referral to expert panel for who will provide a recommendation about listing. Option to take no further action at any stage!

14. Structured Decision Making Process (SDMP) Aims of Stage 1 Assessment: • To apply the initial competency tests. • To consider a range of static factors e.g. time since last conviction. • To identify cases where no further action is required. • To identify cases where further exploration is warranted. • To identify cases which should proceed to consideration for listing. • To support decision making.

15. Modelling Criminal Convictions Group 1: serious violent and sexual offences (other than those included for automatic listing or in Schedule 1) which are likely to lead to barring e.g. indecent assault. Group 2: person centred, anti social and anti authoritarian offences which warrant further exploration e.g. breach of the peace, theft from person. Group 3: offences which are not relevant to the issue of unsuitability e.g. road traffic offences.

16. Breach of the Peace 1984 £75 fine Theft 1984 £75 fine Theft (shoplifting) 1985 £25 fine Assault 1985 £25 fine Breach of the Peace 1985 £25 fine Breach of the Peace 1985 30 days detention Theft by housebreaking 1985 18 months probation Theft by housebreaking 1985 150 hour CSO Breach of the Peace 1985 £50 fine Breach of the Peace 1986 £500 fine Breach of the Peace 1991 £150 fine MDA 1971- possession 1991 £50 fine and forfeit drugs Grievous Bodily Harm 1991 9 months imprisonment suspended for 2 years

17. Structured Decision Making Process (SDMP) Aims of Stage 2 Assessment: • To build on the Stage 1 Assessment by considering a range or dynamic and situational factors e.g. level of training or support given to individual, outcome of participation in rehabilitation programmes. • To support a decision about listing on either, or both, lists. • To identify cases where a specialist assessment is required. • To identify cases where expert advice from a panel is required.

18. Stage 2 Assessment • An assessment of the behaviour which is of concern. • The likelihood of the behaviour occurring in the future (includes weighing up the strengths in the case). • The circumstances in which the harmful behaviour might occur. • The degree of harm that might be caused. • Who might be harmed.

19. Structured Decision Making Process (SDMP) Aims of Stage 3 Assessment (conducted by expert panel): To make a recommendation to Disclosure Scotland about listing on either, or both, lists.

20. Future Work • Barring Criteria Reference Group • Expert advice on risk assessment tools • Testing • Guidance for staff • Ongoing contact with Independent Safeguarding Authority • Explore how to support individuals to make representations