Home > Policy documents > N > N96A Disclosure in relation to PDP, violent and sexual
Protecting and serving the people of Kent

Navigation




N96A Disclosure in relation to the Management of Potentially Dangerous Persons, Violent and Sexual Offenders

1. Security protective marking

1.1 Not protectively marked.

2. Summary of changes

2.1. The following changes have been made to this policy on 14 April 09:

      • This policy has been rewritten

2.2.  This policy is scheduled for review in April 2011.

3. Disclosure of personal information on Potentially Dangerous Sex and Violent Offenders 

3.1. The aim of this document is to provide useful information and guidance to officers who have the responsibility of considering disclosure in relation to violent, sexual offenders and PDPs.

 

3.2. This policy will provide the basic principles to be considered when making a decision to disclose information about an offender. There is reference to relevant legislation that provides the framework for making disclosure. Current case law is used to clarify the points to be considered before such disclosure is made.

 

3.3. Guidance regarding risk assessment has been taken from The NPIA Protecting The Public: Managing Sexual Offenders and Violent Offenders. The document also provides the process by which disclosure should be made and the actions to be taken.

 

 3.4. This policy has been written in accordance with: 

    • Multi-Agency Public Protection Arrangements (MAPPA) Guidance, version 2.0
    • NPIA Guidance Protecting The Public: Managing Sexual Offenders and Violent Offenders.
    • Home Office Circular 39/1997
    • Home Office Circular 2008/01
    • Section 140 of The Criminal Justice and Immigration Act 2008
    • Section 327A of The Criminal Justice Act 2003
    • Section115 of The Crime and Disorder Act 1998
    • Section 29 Data Protection Act 1999

 

3.4. The guidelines also refer to three appeal court judgements, which are still current

      • R v Chief Constable of North Wales Police and Others (Ex Parte AB and CD)
      • R (On the application of X) v Chief Constable of West Midlands Police & ANOR (2004)
      • Helewell v Chief Constable of Derbyshire 1995.

 

4. Principles of disclosure

 

4.1. There is a legal requirement following the enactment of the Criminal Justice and Immigration Act 2008(effective from 14th July 2008) which requires MAPPA to carry out a risk assessment of all MAPPA offenders and identify those persons who may be at risk of serious harm from the offender. The risk management plan (RMP) must identify how those risks will be managed. As part of this process, consideration must be given in each case as to whether disclosure of information about an offender to others should take place to protect victims, potential victims, staff and other persons in the community. This applies to all Categories and levels of MAPPA cases.

 

4.2. Home Office Circular 2008/01 states:

In addition to the matters highlighted in the guidance, MAPPA responsible authorities need to be aware that under new sections 327A(2) and (3) of the Criminal Justice Act 2003 there will be a presumption that information will be disclosed where the MAPPA responsible authority has reasonable cause to believe that a child sex offender poses a risk of serious harm to any particular child or children or to children of any particular description, and the disclosure of information to a particular member of the public is necessary for the purpose of protecting the particular child or children, or the children of that description, from serious harm caused by that offender.

Although this circular refers to child sex offenders the MAPPA Guidance includes all MAPPA offenders.

 

4.3. The purpose of disclosure of information is:

    • To facilitate the risk management plan,
    • To facilitate public protection
    •  reduce the risk of serious harm.


4.4. It is preferable that the offender is aware that disclosure is taking place and, on occasion, they may make the disclosure themselves in the presence of a Police Investigator and/or their Offender Manager or the content of the disclosure would be confirmed/verified by the Offender Manager/supervising Police Investigator subsequently. However, there will be cases where informing the offender that disclosure is taking place could increase the potential risks to the victim(s) and, in those cases, the offender will not be informed. This decision must be clearly recorded in the level 2 and 3 MAPPP minutes and on case management records. For all level 1 cases, the decision must be clearly recorded on ViSOR.


4.5. MAPPA Guidance states that information sharing must:

    • Have lawful authority;
    • Be necessary;
    • Be proportionate;
    • Be undertaken in ways that ensure the safety and security of the information shared;
    • Be accountable.

4.6. Information collated by the police for the purposes of crime prevention or detection is subject to a common law duty of confidence, the principles of the Data Protection Act 1998 and the Human Rights Act 1998.

It must be borne in mind that all disclosures are potentially subject to challenge under Article 8 of the Human Rights Act 1998. All decisions will need to be recorded and must be justified and proportionate to the objective to be achieved and reasonable in the circumstances. The decision making process may also come under scrutiny as a result of challenges through the Freedom of Information Act from 1 January 2005.

 

4.7. Unless there is a statutory requirement to disclose information e.g. notifiable occupations, the guiding principle behind disclosure must be to have a clear justification process supported by a proportionality requirement and risk management plan.


4.8. Coverage of sexual offender related issues remains controversial and public concerns about the disclosure of information held by police will always need to be managed. This policy aims to establish guidelines for circumstances not clearly legislated for. This includes disclosure to third parties outside the criminal justice or child protection system.


4.9. The scope of this policy should not be seen as relating solely to those sexual offenders who are subject to notification procedures under the Sexual Offences Act 2003 as disclosure issues may arise in relation to sexual offenders who fall outside the Act. For example, if the offender was convicted for a sexual offence prior to the 1997 notification requirements and now being managed as a category 3 offender at level 2 MAPPA management. 

 

4.10. This guidance does not cover disclosure of information from criminal records for employment and related purposes for which provision is made in Part V of the Police Act 1997. Guidance in relation to those issues can be found in the following policies:

4.11. More difficult disclosure situations arise when a sexual/violent offender is released into a community and may pose a risk to children/vulnerable people in the locality.

 

4.12. Every effort must be made to consult other relevant agencies of any decision to disclose information before it takes place.

 

4.13. When disclosure takes place it should almost always be to an identified individual or individuals directly affected by the risk of serious harm or with responsibilities towards others for the prevention of harm e.g. Head Teachers. 

 

4.14. NPIA Guidance Protecting The Public: Managing Sexual Offenders And Violent Offenders have provided checklists and they have been included in this document.

 

Checklist 8 will aid you in evaluating the information you are considering for disclosure. 

 
Checklist 9 is intended to assist in assessing the impact of disclosure and what should be disclosed:


4.15. Checklist 8 Evaluating Public Protection Information

 

The following questions should be asked regarding any public protection information so that the significance of such information and the actions required can be thoroughly evaluated 

• Is there evidence of a capacity to inflict serious harm by a known or unknown
  individuals?

• Are there concerns about children or vulnerable adults?

• Does the offence or behaviour to which the information relates involve a breach of trust?

• Is there evidence of established links or associations which might increase the risk of harm?

• Are there concerns about substance misuse?

• Are there concerns that an individual’s mental state might exacerbate risk?

4.16. Checklist 9 Decisions Relating to Sharing Public Protection Information. When making decisions about sharing information, the following should be taken into account and recorded.

• Disclosure of personal data should be the exception to a general policy of confidentiality

• Why should information be shared?

• How would sharing information reduce the risk to the public?

• Is there another practical and less intrusive means of reducing the risk to the public?

• What is the legal basis for sharing information in this particular case (e.g., purpose under the Data Protection Act 1998)?

• Is there a possibility of increasing the risk of violence against an individual(s), leading to public disorder?

• Could the offender be driven underground?

• What would be the effect on victims?

• What would be the effect on members of the offender’s family?

• What would the effect on the community and possible policing implications?

• What would be the effect on the ability of an offender to live a normal life?

• Exactly what information should be shared and with whom?

• Has the offender or PDP been consulted about the proposed information sharing as part of the risk management plan, and asked their views?     

 4.17. MAPPA Guidance 2007 provides examples of circumstances where disclosure may be appropriate:

 

  •  When there is evidence that grooming behaviours may take place, for example, through leisure clubs, churches, employment;

 

  • If there is a condition in a SOPO (Sexual Offence Prevention Order)/licence excluding offenders from a specific location and/or having contact with named persons;

 

  • Where others (including other service users) may be at risk, for example, in supportive accommodation. This may include other service users, but usually it will be staff and managers who are told in order to enable more appropriate placements and for greater vigilance to be exercised;

 

  • Where there is a need to protect past or potential victims, in particular where offenders strike up new relationships with partners who have children or grandchildren. In some cases, this may include friends or neighbours who have children;

 

  • Where a person may be in a position to actively assist in the risk management of an offender by being familiarised with risk factors and scenarios;

 

  • To schools and colleges if grooming behaviours need to be prevented.  In the case of young offenders, limited and controlled disclosure may be made to school or college staff.

 

 4.18. Most of the above examples refer to concerns of a sexual nature but MAPPA guidance states that disclosure may also be necessary when the concerns relate to violent offenders.

 

5. Supporting legislation and case law

 

5.1. When an application is made to the ACC for disclosure it is generally the common law power to disclose that is being applied. Recent cases on disclosure have acknowledged a longstanding acceptance of the absolute and unconditional obligation binding the police services to take all steps which appear to them to be necessary to keep the peace, prevent crime, and protect property.

 

5.2. R v Chief Constable of North Wales Police

ExP.AB, EX P. Thorpe
Divisional Court :1997
Court of Appeal :1998

 

5.2.1. This is a landmark case that is still being applied to disclosure cases at Court . The facts were a married couple released from prison after long sentences for serious sexual offences against children, attempted to settle away from where their crimes were committed but met adverse local press and angry neighbours. They moved into a caravan on a site in North Wales.  North Wales Police became aware of the risk they represented, multi-agency consultation took place on a number of occasions to consider a response to the couples presence on the site which would be populated by large numbers of children during the holiday period.  Officers met with the couple and tried to persuade them to leave before the holiday period commenced, stating that if they did not do so the site owner would be informed of their record.  The offenders stayed on site and after discussion with senior officers and advisors disclosure was made.  The couple left the site on request of the owner.

 

5.2.2. The couple took legal action stating that North Wales police failed (to prove in judicial review proceedings for declarations) that both the policy and the decision to inform the site owner of their convictions were lawful.  Their case was not found and three important principals were observed from this case;

    •  The general presumption that such information should not be disclosed, recognising (a) the potentially serious effect on the ability of convicted people to live a normal life;
    •  The strong public interest in ensuring that police are able to disclose information about offenders where that is necessary for the prevention or detection of crime, or for the protection of young or other vulnerable people.
    •  Each case should be considered carefully on its particular facts assessing the risk posed by the individual offender; the vulnerability of those who may be at risk; and the impact of disclosure on the offender. In making such assessment, the police should normally consult other relevant agencies (such as social services and the probation service)

5.2.3. The case went to the Court of Appeal stating that North Wales police had treated them in a procedurally unfair manner and from this judgement a further four important propositions were made:

1. Each case must be judged on its own facts. 

The court said: In doing this, it must be remembered that the decision to which the police have to come as to whether or not to disclose the identity of paedophiles to members of the public, is a highly sensitive one.

2. Disclosure should only be made when there is a pressing need for that disclosure. “pressing need” is not defined and the common sense interpretation will have to be applied.

3. Before reaching their decision as to whether to disclose, the police require as much information as can reasonably practicably be obtained in the circumstances.  There are obvious dangers in releasing inaccurate information to the public.

4. This may involve consultation with the subject of disclosure. 

This plainly introduces a duty to consider referring the issue of potential disclosure to the offender before taking the decision.  Whether it is right to do so will depend entirely upon circumstances and opportunity. 

 

5.2.4. The Appeal Court also gave guidance about the relevance of the Human Rights Act.  Article 8 of the European Convention for the protection of Human Rights

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”

 

 5.3. Home Office Circular 39/1997

 

5.3.1. This circular’s title is “Managing information acquired under Sex Offenders Act 1997. It is no longer available electronically; a hard copy is available from HQ PPU.  The guidance includes advice in respect of the R v Chief Constable of North Wales police but predates the Court of Appeal information.  This circular has not been replaced and is still current.

 

5.3.2. R (On the application of X) v THE CHIEF CONSTABLE OF WEST MIDLANDS POLICE & ANOR (2004). A Chief Constable was under a duty, under the Police Act 1997 s.115, to disclose information to a prospective employer in an enhanced criminal record certificate if the information might be relevant unless there was a good reason for not making the disclosure.
 
5.3.3. The appellant Chief Constable (C) appealed against an order that his decision to provide information in an Enhanced Criminal Record Certificate to the respondent's (X) potential employer, relating to an allegation that did not result in a criminal conviction, could not stand. The certificate was requested by X's potential employers, a social work agency, and was issued pursuant to the Police Act 1997 section 115. X was a social worker with no previous criminal convictions. The position applied for involved caring for persons under 18 years of age. The information disclosed related to allegations of indecent exposure and a threat to rape for which a prosecution did not proceed due to a failed identification of X by the complainant. C's decision to disclose the information was based on the Head of the Central Information Unit's (S) assessment of X's crime file in relation to the incident, in particular X's police interview. S gave a full explanation for her decision to disclose the information based on a balancing exercise of competing factors. X argued that C's disclosure was unlawful under the European Convention for Human Rights 1950 Article 8 and procedurally unfair. The judge found in X's favour and quashed C's decision. The judge held that C's duty to act fairly included an obligation to permit X to make representations in relation to the proposed disclosure. 

 

5.3.4. HELD: C was under a duty to provide the information referred to in s.115 (7) of the Act subject to the requirement that the information might be relevant and ought to be included in the certificate. That was a matter of opinion for C. The judge had taken a more favourable view of X's police interview. At the interview, X had not categorically denied that he was the person involved as emphatically as could have been expected. Further S had taken obvious care to prepare the matter for C to decide the question of disclosure. The instant case was very different from the case relied on by the judge of Chief Constable of North Wales Police ex p AB & anr 1998 3 WLR 57 in which disclosure had not been made under a statutory framework, and the judge had misinterpreted the judgment in that case.

 

5.3.5. In the instant case there was no presumption against disclosure, the position was more in favour of disclosure as C was under a duty to disclose if the information might be relevant unless there was a good reason for not making a disclosure. That was the policy of the legislation in order to protect children and vulnerable adults.
It imposed too heavy an obligation on C to require him to give an opportunity to a person to make representations to him prior to performing his statutory duty of making disclosure. X had had ample opportunity to set out his account during his police interview. He was further able to explain his position to his potential employers or to correct the certificate under s117 of the Act. Whilst recognising how damaging the disclosure could be to X, because of the public interest in the information being made available to a prospective employer, C was entitled to be of the opinion that the information might be relevant so that it had to be disclosed. The making available of that information in accordance with the law could not be contrary to Art.8(2) of the Convention. There could be no valid criticism of C.

 

5.4. Helewell v Chief Constable of Derbyshire (1995)

5.4.1. This case involves the distribution of photographs of an individual charged with shoplifting. In the judgement it is stated that police “may make reasonable use of such photographs for the prevention and detection of crime, the investigation of alleged offences and the apprehension of suspects or persons unlawfully at large”.

5.4.2. The Force accepts that the distribution of such photographs is a legitimate tactic in the disruption or incapacitation of persistent offenders (see policy K10).

 

5.5. There are a number of statutes which give the power to disclose, namely:

 

5.5.1. Section 29 Data protection Act 1998

Which provides the exemptions in respect of personal data in connection with crime and taxation from the first data principle and section 7 (rights of data subjects and others) of the Act.

29(1) Personal data processed for any of the following purposes:-

(a) the prevention or detection of crime,

(b) the apprehension or prosecution of offenders, or

(c) the assessment or collection of any tax or duty or of any imposition of a   similar nature.


5.5.2. Section 115 Crime and Disorder Act 1998

Section 115 of the Crime and Disorder Act 1998 specifies the exceptions allowing the disclosure of information to certain authorities in order to fulfil the purposes of the Act.
Any person who, apart from this subsection, would not have power to disclose information -
(a) to a relevant authority; or
(b) to a person acting on behalf of such an authority, shall have power to do so in any case where the disclosure is necessary or expedient for the purposes of any provision of this Act.


5.5.3. Definition of “relevant Authority” is under Section 115(2)
(Please note there are restrictions within the act as to who you can disclose to and for what purpose)

 

5.5.4. Section 325 Criminal Justice Act 2003

Section 325 of the Criminal Justice Act 2003 re-enacts with amendments section 67 of the Criminal Justice and Courts Services Act 2000. It places a duty on the "responsibility authority" (the chief officer of police, the local probation board for each area and the Prison Service) to establish and keep under review arrangements for assessing and managing the risks posed by "relevant sexual and violent offenders" or other offenders who may cause serious harm to the public. The arrangements which have been established at area level to undertake this duty take the form of "Multi-agency Public Protection Arrangements. The responsible authority and those bodies listed must co-operate with each other, in order to enable the responsible authority to perform its duty. The Secretary of State is given power to amend the list of specified bodies which must co-operate with the responsible authority, so as to add or remove an entry.

5.5.5. Section 325(4) Co-operation under subsection (3) may include the exchange of information

5.5.6. Section 327A Places a duty on MAPPA authorities Multi Agency Public Protection Arrangements- police, prison and probation services) to consider, in each case, disclosure to members of the public of information in its possession relating to the convictions of any child sex offender being managed by it. 


 

 

6. Retention and disposal of records

6.1. Documents mentioned in the above policy will be retained for the period specified in the Retention & Disposal of Force Documents Policy (Ref No B18) and the supporting disposal schedule.

7. Equality impact assessment

7.1. This policy has been assessed with regard to its relevance to race and diversity equality. As a result of this assessment the policy has been graded as having a medium potential impact.

 

7.2. Attached is the latest equality impact assessment that forms part of the policy review process.

Policy reference: N96A Disclosure in relation to PDP, violent and sexual
Policy owner: Detective Chief Superintendent, Crime and Intelligence
Contact point: Policy Unit, 01622 654662
Date last reviewed: 14 April 2009
Document last saved: 10 September 2009