Applying criminal records disclosures:Policy and arrangements

May 2011

Contents

Part 1 /
Section
Policy / 1
Arrangements / 2
Guiding principles / 2
Scope / 3
Related policy and procedures / 4
Posts requiring criminal records disclosures / 5
Applying checks to existing staff / 6
Renewing Criminal Records Disclosures / 7
Portability of Criminal Record Disclosures / 8
Posts to be included on governments’ Vetting and Barring Scheme / 9
Criteria for Assessing Relevance of Criminal Records / 10
Equality and Diversity Statement / 11
Handling, Recording and Retaining Criminal Records Information / 12-13
Roles and Responsibilities / 14
Review, Auditing and Assurance / 15
Annex
List 1- Posts requiring Standard and Enhanced Disclosures / 5
Part 2
Recruitment of Ex-offenders / 16
Policy Team contact details / 17
  1. Policy Statement

1.1MoJ's security policies require that we will undertake appropriate checks on employees to give assurance as to their reliability. We will make use of criminal record checks in assessing the suitability of individuals to hold certain posts. Such checks will be used where the security of people, information or property is assessed to be at particular risk from potentially unreliable employees, where it is considered that the "basic check" gives insufficient assurance and where the more intrusive national security checks are inappropriate.

1.2In applying criminal record checks, (which are known as Disclosures), we undertake to treat all applicants for positions fairly.

1.3MoJ is committed to fair treatment of its staff, potential staff and users of its services regardless of race, gender, sexual orientation, responsibilities for dependants, age, physical/mental disability or any other irrelevant factor and is committed to providing equality of opportunity in employment.

1.4We welcome applications from candidates regardless of ethnicity, religion or belief, gender, sexual orientation, disability or other irrelevant factors.

1.5In considering the recruitment of ex-offenders, only relevant offences are considered when deciding whether or not to bar an applicant from employment. This policy will be made available to all applicants who are subject to Criminal Records Disclosures at the outset, before checks are requested.

1.6.For some posts we only ask about ‘unspent’ convictions as defined in the Rehabilitation of Offenders Act, 1974. However, for posts involving a high level of risk, a Criminal Records Disclosure covering an applicant's entire criminal record, including "spent" convictions, may be requested. This level of information will have been assessed as being both proportionate and relevant to the position concerned.

1.7.For those positions where such a Disclosure is required, all application forms, job adverts and recruitment briefs will contain a statement that such a criminal records check will be requested in the event of the individual being offered the position.

1.8.Where a Disclosure is to form part of the recruitment process, we encourage all applicants to provide full details of their criminal record at an early stage in the application process. We request that this information be sent, in confidence, to MoJ Shared Services and we guarantee that this information will only be seen by those who need to see it as part of the recruitment process.

1.9.We will ensure that all those in MoJ who are involved in the recruitment process have been suitably trained to identify and assess the relevance and circumstances of offences. We also ensure that they have received appropriate guidance and training in the relevant legislation relating to the employment of ex-offenders, e.g. the Rehabilitation of Offenders Act, 1974.

1.10.We will ensure that applicants are provided with the opportunity to clarify issues relating to offences that might be relevant to the position. Failure to reveal information that is directly relevant to the position sought could lead to withdrawal of an offer of employment.

1.11.We make every applicant of a Criminal Records Disclosure aware of

the existence of the CRB Code of Practice and make a copy available upon request.

1.12.We undertake to discuss any relevant matter revealed in a Disclosure with the applicant before withdrawing a conditional offer of employment.

1.13Having a criminal record will not necessarily bar an applicant for employment from working with MoJ. This will depend on the nature of the position, the relevancy of the offence/s and any other additional factors.

Arrangements

  1. Guiding principles

2.1The aims of this policy will be realised by:

  • Following the legislative requirements of the Rehabilitation of Offenders Act, 1974, the Police Act 1997, the Children Act 1999 and the Criminal Justice and Court Services Act 2000.
  • Adhering to the requirements of:

The Code of Practice for the Criminal Records Bureau, the government body responsible for administering criminal records checks in England and Wales and;

The Civil Service Management Code which states that departments and agencies must be satisfied that recruits are able to show that they will be able to give satisfactory service in the future and that nothing in their more recent past is likely to bring discredit upon the department in general.

  • Following a disqualification criteria, which ensures that only relevant offences are taken into consideration and that the principle of ‘balance of proportionality’ is taken into account when assessing an applicant’s criminal record ensuring no discrimination occurs
  • Following MoJ commitment to establish practices which:

Are non-discriminatory and guard against unlawful behaviour, including discriminating against those who have a criminal record (refer to equality and diversity policy).

Encourage fairness and transparency in the process of assessing the relevance of criminal records to a post and the applicant’s suitability for employment.

  • Ensuring that the implementation, monitoring and development of this policy is supported by training made available to those staff in MoJ Shared Services who are responsible for administering the checks.
  • Reviewing the policy to determine which new posts require criminal

records checks and to reflect any changes in legislation.

  • Ensuring that the criminal records policy complements the Resourcing and Personnel Security policies of MoJ.

  1. Scope

3.1.This policy applies to:

  • all candidates for recruitment (permanent, fixed- term and agency), contractors, consultants and certain existing staff in posts that require criminal records checks,
  • to managers recruiting staff and
  • MoJ Shared Services, who will be responsible for administering the checks.

3.2.It applies to the whole of MoJ including its agencies, other offices and non-departmental public bodies.

  1. Related policy and procedures
  • Resourcing policy
  • Equality and Diversity policy
  • Security Manual
  • Criminal Records Bureau – Code of Practice
  • Civil Service Management Code
  1. Posts requiring Criminal Records Disclosures

5.1.There are three types of Criminal Records Disclosure available to organisations:

  • A Basic Disclosure – covering only ‘unspent’ (current) convictions.
  • A Standard Disclosure – covering full criminal records. For posts involving access to children this includes confirmation of details held on government lists (Department of Health (DoH) and Department for Education (DfE)) of those who are banned from working with children and those considered unsuitable to work with vulnerable adults.
  • An Enhanced Disclosure – for staff whose normal duties involve “unsupervised contact with children/vulnerable adults under arrangements made by a responsible person”, this includes all of the checks for the Standard Disclosure as well as any relevant and proportionate information held by the local police forces'.

5.2.In MoJ, it is currently assessed that the Standard or Enhanced

Disclosures are required for certain designated posts, specified in List 1. For each post a risk assessment has identified the need to apply such a check.

5.3.The statutory provision allowing MoJ to undertake such disclosures for these posts is covered in the Exceptions Order 1975, of the Rehabilitation of Offenders Act, 1974.

List 1. Posts requiring Standard and Enhanced Disclosures

Standard Disclosure

Court Security Officers and Security Officers in Tribunals*

Staff with access to (personal) judicial records, (only to be applied to those working in regional and national offices).

County Court Bailiffs

  • Judges Lodgings Staff

Civilian Enforcement Officers (all)

  • High Court Enforcement Officers
  • Court Cleaners with custody of court keys
  • Courts Funds Office and Official Solicitor and Public Trustee staff with access to client funds
  • Designated officers for magistrates courts (Accountable Managers and staff designated with Fines Officers powers)
  • Justices Clerks and Legal Advisors and their assistants

Enhanced Disclosure

  • Staff/contractors whose duties involve unsupervised access to children and vulnerable adults. (Ushers in Magistrates, Crown and County Courts)
  • Visitors to the Office of the Public Guardian
  • OPG staff with access to data relating to children and vulnerable adults
  • Tipstaff
  • MOJ's CRB Countersignatures

5.4.For posts not covered in this list, but where business areas assess that actual risks warrant the application of full criminal records checks on staff/contractors, please contact Corporate Security and Business Continuity Branch. They will advise whether the post is covered under the Exceptions Order 1975, of the Rehabilitation of Offenders, 1974, and whether or not the application of such criminal records checks are appropriate.

  1. Applying Checks to existing staff

6.1.Each case, with criminal records information will be considered on its own merits according to the standards set in this policy and posts will be reviewed accordingly.

  1. Renewing Criminal Records Disclosures

7.1New recruits and staff moving to designated posts, will be informed at the recruitment stage that criminal records disclosure checks will be renewed after a period of 5 years if the individual is still in a designated post. Renewals will be initiated and monitored by MoJ Shared Services. Postholders should note that this requirement does not alleviate the ongoing duty of MoJ staff to disclose new offences.

  1. Portability of Criminal Records Disclosures

8.1Portability refers to the transfer of a Criminal Records certificate

8.2It is MoJ policy that an Enhanced Disclosuremay not be transferred. This is because the certificate may not contain additional or any relevant and proportionate information disclosed at the Chief Police Officer’s discretion.

8.3.Standard Disclosures will be considered for transfer provided:

  • An original certificate issued within the last 12 months is produced and validated by MoJ Shared Services and;
  • Any criminal records information is assessed as per the criteria in section 10.

9.Posts to be included on the Vetting and Barring Scheme

9.1.In 2008, the government is due to introduce a new vetting and barring scheme in response to recommendation 19 of the Bichard Enquiry into the deaths of Holly Wells and Jessica Chapman.

9.2This will mean that:

  • Staff in designated posts requiring an Enhanced Disclosure will be included in the scheme and;
  • Existing staff in designated posts already subject to an Enhanced Disclosure will also be included at the date of their disclosures being renewed.

9.3.The scheme allows;

  • for a continuous update of an individual’s barring status with new information from the police, courts, social services, employers, regulators and other relevant sources;
  • For the provision of on-line access for employers to check whether a prospective employee is included on the list, reducing the need for repeating a full Enhanced Disclosure through the Criminal Records Bureau (CRB) every time someone changes job;
  • For employers to be notified immediately if someone they are employing is subsequently barred by the scheme.

10.Criteria for Assessing Relevance of Criminal Records

10.1.Ensuring that an employee's criminal past will not interfere with their role is particularly important in some parts of MoJ, because of involvement with the judiciary and administration of justice, our dealings with children and vulnerable adults, and public confidence in the justice system. Offences of particular relevance for those working for MoJ are assessed as those relating to: violence, offensive weapons, drugs, sexual offences, serious criminal damage, theft, racial offences, child pornography and dishonesty.

We have classified offences individually as being either VERY

SERIOUS or SIGNIFICANT. A full list of offences is provided in Part 2 of the policy.

10.2.MoJ uses a disqualification criteria (full details are provided in Part 2 of the policy) for assessing the relevance of these offences, which is that approval of a criminal records disclosure, be automatically be denied if an individual is ‘not free from the effects’ of a conviction for:

a SIGNIFICANT offence - for at least 2 years before the

application for employment or:

a VERY SERIOUS offence - for the last 5 years.

10.3.In all other cases, and for all OTHER offences, we will consider additional factors/mitigating circumstances before a decision is made. Details the of types of factors we consider are provided in Part 2 of the policy .

10.4. By ‘free from effects of a conviction' we mean that we will start

counting the time elapsed from the end of the sentence or penalty as appropriate, rather than the date when the applicant was sentenced or when the offence or offences were committed.

10.5. We will consider cautions, warnings, reprimands and public disorder

notices for these offences more leniently. The criteria for assessment

of these penalties is defined at Part 2 of the policy.

10.6. In addition, solely for those posts involving unsupervised contact with

children, there will be a presumption against employing individuals held on government lists which ban them from working with children and vulnerable adults if they have committed an offence (caution or conviction) which places them on the Sex Offenders Register.

In these cases the Department will follow the recommendations of the police, to determine whether or not to allow a person unsupervised access to children or vulnerable adults, as part of their duties)

10.7.The full policy on the recruitment of ex-offenders is provided at Part 2 of the policy)

11.Equality and Diversity Statement

11. 1 If an applicant believes that a prejudicial assumption about reliability has been made against them, based on identity and due to factors such as race, then they must notify MoJ Shared Services, who will arrange for an independent assessment of any criminal records information.

12. Handling Criminal Records information

12.1.Criminal Records data relating to individuals is personally sensitive information and the Department must ensure that such information is handled correctly, ensuring that staff meet their obligations under the Data Protection Act 1998.

12.2.To achieve this, MoJ Shared Services must ensure:

  • That those handling criminal records data are aware of and correctly apply the information security policies of MoJ (Information Security section of the Security Manual).
  • That criminal records information is not disclosed other than to those who need to know without the consent of the applicant, and that
  • Such information is securely stored and only accessible by those staff who need to have access to the information to administer criminal records checks.

13.Recording Criminal Records Information

13.1.Criminal Records information should be stored electronically by a named person and access controls carefully monitored.

The following details should be recorded:

  • Personal details of applicant
  • Date application sent to Disclosure Service
  • Date application returned from Disclosure Service
  • Criminal Records Information :
  • Date of clearance
  • Date clearance expires

12.2.The database used for recording such information must be compliant with the Data Protection Act, 1998.

13.Retaining Criminal Records Information

13.1.Physical records should only be retained for a period of six months, from the date that a letter confirming an employment decision is sent to the applicant.

13.2.If an appeal or tribunal is on-going and has commenced before the six month period, then the Data Protection Officer at CRB can advise whether it is necessary to retain the Disclosure beyond the six month period.

13.2.Once Criminal Records have been destroyed, CRB can provide copies of disclosures for appeal and tribunal purposes but each case will be judged on its’ own merits.

14.Roles and Responsibilities

14.1.To ensure that the application of criminal records checks are effectively and fairly managed, it is essential that specific responsibilities are allocated on a Departmental and local basis. This section outlines these key responsibilities:

14.2.As a candidate for employment you must:

  • Carefully read:

The job advert, which will confirm whether criminal records checks will be applied to your post and;

 The equal opportunities statement outlined at section 11.

(* - Please also note that upon request MoJ Shared Services will make copies of the criminal records policy and the CRB Code of Practice available to applicants for employment)

  • Have honestly declared all offences that may be relevant to your application [including cautions, where appropriate]. The nature of your post will require that you will either need to disclose:

only ‘unspent’ (current) convictions or:

in certain cases (all posts defined in List 1 ) both ‘spent’ and ‘unspent’ convictions. For these posts, any past advice that you may have been given that you do not need to disclose a caution or conviction should be ignored.

  • provide when attending for interview, a fully and accurately completed Disclosure application form. (Please note that criminal records checks will only be processed for the successful applicant).
  • Note that non-British citizens or those who have resided overseas for more than 6 months in a year, must provide an original criminal records certificate from the country they have resided in, together with a translation into English, made by an accredited translation agency.

14.3.As an existing member of staff you must:

  • Be aware that if you work in an area assessed as requiring mandatory criminal records checks or transfer to such an area, then you will be asked to undergo criminal records checks, renewed every five years, in line with this policy. You will be asked to complete a disclosure certificate, available from MoJ Shared Services and return it for processing. Your line manager and MoJ Shared Services can offer you advice if you are unsure whether you are affected.

14.4.As a manager you must:

  • Have assessed whether the staff within your team or a vacant post requires a Criminal Records Disclosure to be undertaken (see section 5)
  • Ensure that the job advert for a vacant post and the job description for relevant staff clearly states that the post is subject to satisfactory criminal records checks. The advert must define whether these checks cover both ‘unspent’ and ‘spent’ convictions. You should obtain advice from HR if in doubt that the vacant post is/is not subject to criminal records checks and the use of standard wording within the advert.
  • Ensure that existing staff requiring a Criminal Records Disclosure fully complete a Disclosure application, producing relevant identity documents and return to MoJ Shared Services.

14.5.As a panel chair you must: