Charity Law Association – Criminal Records Bureau Checks
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Opinion
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Introduction
1.We are asked to advise in relation to Criminal Record Bureau (‘CRB’) checks and in particular whether such checks for trustees of children’s charities are required by law or whether simply as a matter of best practice.
2.Since 1997, the Government has introduced a plethora of legislation to regulate the employment of personnel within the Charity and Welfare sectors. Charities must now have regard to the interplay and overlap among these several statutes and regulatory schemes inorder to evaluate and observe the requirement placed upon them. There is no legislation which makes a CRB check generally compulsory for trustees. There is legislation, however, which makes such checks compulsory in particular situations, namely those in which personnel are involved in working with children or vulnerable adults.
3.Thus it is not in every case that there will be a legal requirement for a trustee to be checked for criminal convictions but there are clearly situations when the relevant criteria will be fulfilled and a check will be compulsory. Such relevant criteria will need to be applied to each position on an individual basis and the appropriate assessment made.
4.The requirement that in every case trustees are properly vetted before a position is offered must raise the issue whether every rigorous selection process necessarily must involve a CRB check. The practical resource implications of such a consideration present a huge dilemma for Charities, the Charity Commissioners and not least for the Criminal Records Bureau itself. For this and other reasons to which we make later reference, we consider that it may be necessary for a protocol to be established which will serve as a guide to both the Charity Commissioners and the Charity Movement. We are grateful to have been provided with an advance copy of the proposed Guide to the Appointment of Trustees but we are bound to observe that the suggested level of best practice is likely in our experience to produce a stifling backlog of information.
5.In the following paragraphs we set out the relevant legislation, statutory requirements and criteria and then proceed to answer the specific questions raised by our Instructing Solicitors.
Relevant legislation
THE POLICE ACT 1997
6.The Police Act 1997 established the Criminal Records Bureau but did not make checks compulsory. The Act stated that upon application a criminal records certificate will be issued and set out the procedure by which such an application should be made [Police Act 1997 part V].
THE PROTECTION OF CHILDREN ACT 1999
7.Section 7 of the Protection of Children Act 1999 (‘PoCA’) states:
“7 (1) Where a child care organisation proposes to offer an individual employment in a child care position, the organisation –
(a)shall ascertain whether the individual is included in the list kept under section 1 above, or the list kept for the purposes of regulations made under section 218 (6) of the 1988 Act; and
(b)if he is included in either list, shall not offer him employment in such a position.
8.The “list” referred to is the Protection of Children List kept by the Secretary of State of individuals who are considered unsuitable to work with children.
9.A ‘child care organisation’ is defined as being an organisation which ‘…is concerned with the provision of accommodation, social services or health care services to children or the supervision of children’ or ‘whose activities are regulated by or by virtue of any prescribed enactment; and which fulfils such other conditions as may be prescribed’. [Section 12]
10.A ‘child care position’ is defined as one which ‘…is concerned with the provision of accommodation, social services or health care services to children or the supervision of children….[and]…is such as to enable the holder to have regular contact with children in the course of his duties’. [Section 12].
11.Employment is defined as being ‘any employment, whether paid or unpaid and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract and includes an office established by or by virtue of a prescribed enactment’. [Section 12].
THE CARE STANDARDS ACT 2000
12.The provisions of section 89 of the Care Standards Act 2000 are in similar terms to PoCA but relate to the provision of care for vulnerable adults. In this Act the relevant list is the Protection of Vulnerable Adults list.
THE CRIMINAL JUSTICE AND COURTS SERVICES ACT 2000
13.The Criminal Justice and Court Services Act 2000 [‘CJCSA’] establishes the Children and Family Court Advisory and Support Service which it defines as a ‘child care organisation’ as defined by PoCA. Accordingly the Act creates a compulsory requirement to check whether any individual to be employed is on the Protection of Children Act List. The Act further makes it an offence to offer employment to a person disqualified from working in a ‘regulated position’ and for such a disqualified person to apply for or accept employment in a ‘regulated position’ [Section 35].
14.The Act defines a ’regulated position’ and the definition includes members of a governing body of an educational institution and a charity trustee of a children’s charity. [Section 36].
15. A charity is a children’s charity if ‘…the individuals who are workers for the charity normally include individuals working in regulated positions’. For an individual to be a worker for a charity he must be working under arrangements for the charity [sections 36 (11) and (12)]. It is not necessary for there to be regular contact with children for the individual to be classed as a “worker for a charity.”
THE REHABILITATION OF OFFENDERS (EXCEPTIONS) ORDER 1975
16.The Rehabilitation of Offenders (Exceptions) Order 1975 contains details of ‘excepted professions, offices and employments’ which require, as a matter of law, CRB checks. The professions caught by these provisions are specified health care providers.
SUMMARY
17.These legislative provisions set out the criteria which make a CRB check compulsory. The relevant criteria are that (i) a child care organisation (ii) proposes to offer employment (iii) in a child care or regulated position. In such circumstances each individual organisation has to assess its own role and in offering a position of emloyment must consider the nature and responsibilities of the post offered to assess whether there is a legal obligation to carry out a CRB check.
CRB checks and disclosure
18.A CRB check leads to a ‘disclosure’ and there are three levels.
18.1 A Basic Disclosure will only show all convictions on the police national computer that are not ‘spent’ convictions.
18.2 A Standard Disclosure will show all convictions recorded on the police national
`computer including spent convictions, cautions, reprimands or final warnings. Standard disclosure will also give information contained on the Protection of Children List, the Protection of Vulnerable Adults List and the Education Act List. This level of disclosure is primarily used for those working with children or in regular contact with vulnerable adults and those professions, offices and employments referred to in the Rehabilitation of Offenders (Exceptions) Order 1975.
18.3 An Enhanced Disclosure will entail the same checks as those for a Standard Disclosure but will also include an extra level of checking with local police force records namely for any information which the Chief Constable of the relevant police force may decide should be disclosed. Such enhanced disclosure is ordinarily used in relation to those who have a greater level of contact with children, for instance a doctor or social worker.
19.The CRB does not have access to overseas information but provides guidance to organisations about how to obtain information from a further 21 countries.
Specific questions asked by our Instructing Solicitors
20.We do not propose to rehearse each individual question asked in our instructions but
have grouped together the questions into a number of specific topics. In so doing we provide answers to each of the questions.
Legal requirement for trustees of charities whose beneficiaries include children or vulnerable people or whose activities are directed towards children or vulnerable people irrespective of actual contact (questions 1, 3, 4, 6 and 13.
21.The starting position is to identify whether the criteria are fulfilled. In this respect each
organisation and each position within the organisation must be assessed in the light of the definitions set out above. There is clearly a legal requirement for all child care organisations to carry out a CRB check once the criteria set out above are satisfied. That is to say, where a child care organisation proposes to offer employment in a child care or regulated position. Both PoCA and the CJCSA clearly enact such a requirement.
22.The CJCSA extends the definition of ‘child care position’ which is provided in PoCA,
effectively replacing the former definition and , accordingly, where a position is a “regulated position” a CRB check is a legal requirement. The Department of Education and Skills has adopted this interpretation in its guidance ‘The Protection of Children Act 1999: A Practical Guide to the Act for all Organisations Working with Children’ at para3.5 (‘The Guidance’).
23.As the guidance identifies, the inclusion of governors and charity trustees within
the definition of ‘regulated positions’ was specifically designed to ensure thatthose in such a position of authority and responsibility are expected to be demonstrated to be positively suitable, regardless of actual contact with children. [The Guidance,
para 3.4].
Statutory definition of a children’s charity (question 2)
24. We set out above, the CJCSA provides a statutory definition of a children’s charity.
The definition is dependent upon whether individual workers for the charity normally
work in a regulated position. The Act specifies that such positions includes governors and charity trustees as well as those engaged in training, supervising and caring for children.
25. The question of whether the individual ‘normally’ works in a regulated position will
depend on the particular working circumstances. Clearly one-off contact would not amount to ‘normal work’ but where there is the provision of an on-going service, this is capable of amounting to normal work. We emphasise that there is no requirement that the work should involve ‘regular contact’ within the CJCSA definition of regulated positions.
Situations where existing trustees should be checked and where a prospective trustee has a satisfactory check within 12 months (questions 7 and 8)
26. It would appear that the trigger for the CRB check is the offer of a child care position
or regulated position. The legislation makes clear that it is immaterial whether the prospective employee is already employed by the child care organisation. [PoCA section 7 (3)]. Assuming that the PoCA or CJCSA criteria are satisfied, one interpretation of this section is that for every proposal to offer employment, whether it is to an existing employee or a new one, a CRB check must be made. It appears that in the event that the criteria are satisfied, each time a position is to be renewed a further check will need to be made. Arguably this requirement applies to every governor on the occasion of his re-election by rota. This will certainly be the position where an individual, employed by an organisation in a ‘non child care’ position, then applies for a child care position within the same organisation.
27.It therefore follows that where a prospective trustee or governor must be checked and can prove a satisfactory CRB check within the preceding 12 months, a further check is legally required upon an “offer” of employment by the child care organisation.
28.The only exception to this appears to be where a prospective employee has been provided through a third party or agency. The obligation then is upon the prospective employer is to ensure that the third party of agency has made a check within the preceding 12 months [PoCA section 7 (2)].
Standard or enhanced disclosure (question 5)
29.The legislation does not specify which level of disclosure ought to be sought. However, in order to check the lists referred to above, a Standard Dislcosure is required. The Enhanced Disclosure is mainly used for those who have a greater degree of contact with children or vulnerable adults, for instance a social worker or doctor. Clearly the prospective employer should assess which disclosure is necessary in order to be satisfied that the check is adequate for the position being offered.
30.Where a CRB check is compulsory for those working with children or vulnerable adults, the minimum requirement is Standard Disclosure.
Safeguarding Vulnerable Groups Bill (‘The Bill’) (question 9)
31.The Bill proposes to establish an ‘Independent Barring Board’ (‘IBB’) to establish and maintain the lists of those barred from a ‘regulated activity’ involving children and vulnerable adults. To a large extent it reflects the provisions of the CJCSA. The definitions are in very similar terms. The definition of regulated activity expressly includes members of a governing body of an educational establishment and a charity trustee of a children’s charity [Schedule 3, part 1, sections 1 – 4]. The definition includes activity carried out frequently by the same person and responsibilities which give the individual ‘the opportunity, in consequence of anything he is permitted or required to do in connection with the activity, to have contact with children’ [schedule 3, part 1, section 1 (3)]. It appears therefore that there is no requirement for actual contact with children, only the opportunity for contact.
32.The definition of a ‘regulated activity provider’ is a person who has ‘…responsibility for the management and control of a regulated activity, and…makes provision (whether in connection with a contract of service or for services or otherwise) for another person to engage in that activity’ [section 6].
33.This Bill would also make it an offence for a barred person to seek to engage, or engage in a regulated activity and for an individual to offer to engage a barred person in a regulated activity [section 7]
34.Section 11 deals with CRB checks and makes it an offence for a regulated activity provider to allow an individual to engage in a regulated activity without making an appropriate check. The Bill therefore creates a mandatory requirement for checks to be undertaken where the criteria of regulated activity are satisfied. This applies to trustees and governors. Section 12 specifically deals with the requirement of a CRB check in the case of the appointment of an individual to a governing body of an educational establishment. This aspect of the Bill makes the requirement an express one. The requirement is not retrospective and does not apply where the appointment first took effect before the commencement of the section and continues to have effect after commencement.
35.It can be seen that the Bill makes some changes to the present requirements, in that it makes express provision in relation to CRB checks for governors. In so far as the definitions themselves are concerned there is little change to those provided by the existing legislation.
Access to umbrella organisations (question 10)
36.The current position appears to be that one of the criteria for any body seeking registration is its capacity to make a minimum 100 applications within a 12 month period or risk being de-registered. On 12th January 2006, after a period of consultation, a report was issued by the CRB analysing responses to proposed draft regulations. The report detailed concerns about the requirement for a minimum number of applications in particular concerning the issues of cost, delay and the difficulties faced by small organisations. Those concerns appear to have been shared by the Charity Commission.
37.The CRB provides information on how to access umbrella organisations and who might be the appropriate body to consider any approach and the reasons why. On 6th April 2006, the CRB launched its Umbrella Organisation database providing details of 1700 such organisations. In the light of this facility, small organisations should be able to access an appropriate organisation without significant difficulty.
Overseas applicants (question 11)
38.As identified in paragraph 19 above, the CRB does not have a right of access to information held overseas. It does, however, provide guidance on what steps should be taken if an applicant currently has a non-UK address or has had one within the preceding 5 years. It also provides information on how to obtain overseas information from 21 specified countries.
39.The legislation is silent on the issue of checks for overseas applicants. However, it would be prudent to make an overseas check in addition to a CRB check where such a check is available and the statutory requirement is for a compulsory check. Where a check is compulsory by statute, it is difficult to envisage circumstances in which an overseas check alone is an appropriate alternative. In such an event, the lists of those disqualified would not have been checked and this failure would give rise to a breach of the legislation and therefore the commission of a criminal offence.
Relationship between the requirement of CRB checks and section 72 of the Charities Act 1993 (question 14)
40.As our Instructing Solicitor has pointed out, the provisions of section 72 of the Charities Act 1993 do address disqualification but in the context of a trustee’s financial failings. In that respect the 1993 Act bears no correlation to the requirement for a CRB check.
41.Nevertheless, section 72 also deals with disqualification for a conviction of any offence of dishonesty or deception.
42.A failure to disclose previous convictions or disqualification from working with children is itself capable of amounting to an offence of dishonesty. In the event that any individual employee, trustee or governor were to be prosecuted for such an offence, the conviction alone would render the individual vulnerable to disqualification.
43.We consider that a standard minimum enquiry to any prospective or applicant trustee or governor would be to require the applicant to make an unequivocal declaration that he has no previous convictions and is not included on either of the relevant lists of disqualified persons.
Human Rights considerations (question 16)
44.We have been asked to consider the application of any Human Rights issues which may be brought into play by the operation of this legislation. Article 8 and the right to respect for a private life is the obvious issue. This right is not one of the unqualified rights and is accordingly susceptible to interference by a public authority acting in accordance with the law and when necessary in the interests of national security, public safety or the economic well-being of the country or for the prevention of disorder or crime, for the protection of health or morals or the rights and freedoms of others.
45.The application of Article 8 to the issue of personnel control systems has been considered by the European Court of Human Rights in Leander v Sweden 9 E.H.R.R 433. There can be no doubt that the compilation and disclosure of criminal records is capable of amounting to an interference with the right to privacy but such rights may be qualified where the interference has a legitimate aim and is (i) “ in accordance with law “ and is (ii) determined to be “necessary in a democratic society.”
46.The first requirement is satisfied where the control has a basis in domestic law and the law is both accesible to the individual and has foreseeable consequences.
The second requirement implies that the interference corresponds to a pressing social need and is proportionate to the legitimate aim which is being pursued.
47.The need to protect children and vulnerable adults and the safeguards which are set out in the relevant legislation to identify the bodies to which and the purposes for which such information may be made available are, in our judgement, such as to render the legislation compatible with the principles enshrined in the Human Rights Act 1999.
Are CRB checks necessary and are there any suitable alternatives (questions 12 and 15)
48.Where a CRB check is not a requirement of statutory compulsion and an individual may have contact with children or vulnerable adults, the problem arises in endeavouring to devise an appropriate alternative means of best practice to safeguard the suitability of aspiring applicants. No matter how stringent the selection process or how many references may be obtained, there is an obvious necessity to establish the absence of previous convictions which may present a risk and also any actual disqualification from working with such vulnerable groups.
49.We have made earlier reference to a suggested standard requirement for a positive declaration from an applicant for any position involving children and vulnerable adults. This would replace any simple “yes” or “no” response to a question “Do you have any previous convictions ?” The applicant should be required to make a positive declaration that he has been asked to provide details of any convictions or disqualifications and that he has declared that he has none.
50.An examination of the legislation, despite its somewhat clumsy and cumbersome apparatus, identifies that it provides a scheme which seeks to protect children and vulnerable adults from the appointment of trustees unsuitable for their responsibilities by reason of previous convictions or disqualifications. However it does so at considerable cost to the resources of the CRB and with inevitable consequences for delay and the imposition of administrative burdens upon charities.
51.We are grateful that we have been provided with the letter of Mr Locke of the Charity Commission dated the 26 May 2006 and the opportunity to have an advance copy of the proposed Guidance to Charities on the Appointment of Trustees : “Finding New Trustees”. We cannot take issue with the proposition that ‘best practice’ for bodies, who have the right voluntarily to seek a CRB, would be fulfilled by so applying. The conferring of a right, however, is not the same as providing the practical means for the exercise of that right in a timely and efficient manner.
52.The interim arrangements which are currently in place to facilitate the registration of new charities are a recognition of the practical difficulties which such changes in legislation and policy present. Anyone with current experience of the Courts cannot fail to be aware of the extent of the delays in providing the judiciary with prompt and accurate information about the previous convictions of defendants appearing in criminal litigation.
53.The rigid and inflexible application of the suggested “best practice” and the threat of deregistration for charities who do not provide evidence of voluntary checks to the CRB is in our opinion a disproportionate response to the obvious problems that such approaches will sometimes create. If every charity is required to seek fresh CRB clearance each time a governor is reappointed or if the Science Museum has to seek clearance for all staff who come into more than occasional contact with children on museum visits and sleep-overs, the bureaucracy will stifle charitable activity.
54.This is not to undermine or belittle the underlying purpose of the legislation. We readily accept that the protection of children and vulnerable adults is the paramount objective. Nevertheless we invite the Association to approach the Commission with a view to agreeing a form of protocol which will provide a sensible and responsible degree of discretion to organisations on the issue of voluntary CRB checks. The legislation puts the onus on the charitable organisation by identifying statutory requirements and by defining both the roles and the responsibilities that are brought within the compulsory scheme. The legislation provides the Commission with the context against which to test the transparency and responsibility of the registered organisation. Within those parameters, the proper exercise of discretion by a charitable organisation, at its own risk, is a measure of responsible management. The rigid pursuance of a formulaic process of selection and recruitment is not a guarantee of the right choice of candidate and should not serve to obstruct the proper exercise of charitable functions.
Nicholas Purnell QC
Lesley Bates
23 Essex Street
London WC2R 3AA 6 June 2006
