I don't greatly disagree with your analysis! Keep us informed?
Best wishes
Jonathan
On 17 Sep 2012, at 18:19, "Lawrence Serewicz" <[log in to unmask]<mailto:[log in to unmask]>> wrote:
Jonathan,
Thanks for the response. What I meant by not knowing about the person of interest was that the police were telling the council that they had a person of interest. We, the council, will have to take it at face value that person of interest has sexual offences. We, the council, would not have access to PNC or VISOR to cross check sexual offences convictions (at least to my knowledge).
I agree that sharing of information per the MAPPA arrangements ie managing a sexual offender is key and social services information may play a role. However, the difference here is that the decision is made concerning disclosure rather than managing the person of interest.
If this was FOIA would we want all the social service information of an applicant? (Yes child protection is different, but the purpose is to decide whether the police disclose the relevant information to a member of public *not* to another organisation.) I do not see how the social service information plays a part in deciding the disclosure either about the applicant or the person of interest. If the person of interest has sexual offences this will show up in the PNC or the VISOR systems and that would trump whether or not they were involved in a child protection order. More to the point, if they are a known sexual offender and they are being managed, then they will already be known to the Police through the MAPPA as well as PNC and VISOR. They would not need to go to local social services for additional information.
If the person of interest is *not* showing up on PNC or VISOR, and s327 is about disclosing specific information about the sexual offences, (see 327A and 327B) then why would the police need the social services information? They are requesting information that is not relevant to the decision. I would be surprised if the Council social services are going to have information on sexual offences that is not on the PNC or VISOR.
I cannot see how the social services information will provide any information that is relevant to what is required under s327 of the CJA 2003, which is focused on disclosing convictions to the relevant person(s). If someone is a convicted sexual offender, what will be the additional benefit or use of the social services information? If they are *not* a convicted sexual offender (per the s327a and 327b), why would the police need to search beyond their PNC and VISOR system to have the social services information? The s327 CJA 2003 is silent on this information. They make reference to convictions not to information relating to social services.
Where they do make reference is when they are managing an offender per the MAPPA arrangements ie under s.325 and risk to the public however, that does not have a role in the decision process for disclosing information under s327 CJA 2003 to a member of the public.
In the guidance, which is not statutory, there is reference to using the additional social services information.
2.5 In order to put a scheme in place that raises public confidence and increases the protection of children the Disclosure Scheme will therefore include routes for managed access to information regarding individuals who are not convicted child sexual offenders but who pose a risk of harm to children. This may include:<http://www.homeoffice.gov.uk/publications/crime/disclosure-scheme-guidance/disclosure-scheme-guidance?view=Binary>
• persons who are convicted of other offences for example, serious domestic violence; <http://www.homeoffice.gov.uk/publications/crime/disclosure-scheme-guidance/disclosure-scheme-guidance?view=Binary>
• persons who are un-convicted but whom the police or any other agency holds intelligence on indicating that they pose a risk of harm to children.<http://www.homeoffice.gov.uk/publications/crime/disclosure-scheme-guidance/disclosure-scheme-guidance?view=Binary>
I appreciate that these are important topics, but the legislation is silent on them. The request under s327 CJA is triggering information sharing and processing, without being clear that this is what it is doing or the legal vires to do so. If the guidance is going beyond the legislation, then the sharing is potentially unlawful.
For example, someone may be convicted of another offence, but s.327A is very specific about the offences that are covered. If parliament had wanted to include these other offences (undefined), it would have done so or so I would have thought.
I am also concerned about “intelligence” held by the police or other agencies used to make this decision. How much of this is verified? If person X has a lot of friends that are prostitutes, but person X is not a prostitute and police or council intelligence suggests that person X is running a brothel (but this is completely unsubstantiated), should that be considered?
If someone comes in and asks if Mr. XXXXXX or Mrs YYYYYY under 327A CJA 2003 are they going to be told No, he (she) does not meet any of these criteria, but back in 2003 MR XXXXX or Mrs YYYYYY were in a fistfight with their respective ex-partners even though no charges were filed as both claimed the other started it. Would that be disclosed? According to the guidance it should be considered even though 325-327 CJA 2003 is about convicted sexual offenders not about someone who may or may not have been engaged in a fight with their ex-partners.
The guidance appears to encourage or expect more than what the legislation has been created to achieve. I can see some DP Principles being put to the test by this system.
Best,
Lawrence
From: Baines, Jonathan [mailto:[log in to unmask]]
Sent: 17 September 2012 16:10
To: Lawrence Serewicz; [log in to unmask]<mailto:[log in to unmask]>
Subject: RE: [data-protection] Child sex offender disclosure scheme (request to disclose)? Have you had one of these?
That'll teach me to reply in a rush when I'm off to a meeting. I hadn't noticed your reference to requests about the *applicant*, and I certainly agree that this seems a long way from the intentions of s327A CJA 2003.
As for disclosure of information about the offender:
You say "At this stage, we do not know if the person is an offender. If they were an offender, being managed, then we would not be having to request information...". I'm not sure this is correct: the process for checking whether the person is an offender would indeed only require a check on the PNC/PND. By the time the request is coming to you the police must be after different information (with reference to the guidance, I would suggest "full risk assessment" stage might have been reached (see 5.4.5)).
The CSOD scheme is not a background check, but rather is specifically created to enable disclosure of offender information to a person requesting it (if they are entitled) - the process of assessing whether to disclose may lead to concerns sufficient to require disclosure to other persons. It stands to reason that not all relevant information will always be held by the police - it may be that social care hold information suggesting "concering behaviour relevant to safeguarding children now being displayed".
This is not to say I don't share your concerns, but do you think that s35(2) DPA, the afore-mentioned s327A CJA, section 10 Children Act 2004 will normally combine to permit the disclosure?
Jonathan Baines
Complaints and Information Rights Officer
Legal and Democratic Services
Buckinghamshire County Council
tel: 01296 383681
follow us on twitter @buckscclegal<http://twitter.com/BucksccLegal>
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