Police Act 1997: extension of Part V to Jersey by Order in Council.

STATES OF JERSEY

POLICE ACT 1997: EXTENSION OF PART V TO JERSEY BY

ORDER IN COUNCIL

Lodged au Greffe on 29th July 2009 by the Chief Minister

STATES GREFFE

2009   Price code: B  P.121

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to signify, pursuant to Article 31(1)(b) of the States of Jersey Law 2005, whether they agree that a request be made to the Privy Council for the making of  an  Order  in  Council  that  would  extend  to  Jersey,  with  appropriate modifications and adaptations, the provisions of Part V of the Police Act 1997 as summarised in the report of the Chief Minister dated 29th July 2009.

CHIEF MINISTER

REPORT

Executive Summary

1. The purpose of this Proposition is to request the States to consider whether to agree to the extension to Jersey of the provisions of Part V of the Police Act 1997  listed  at  paragraph 17  below,  with  modifications  suitable  to  the application of those provisions to Jersey.
2. Extension of Part V of the Police Act would enable Jersey to apply to the Criminal  Records  Bureau  (CRB)  for  disclosure  information  for  specific individuals (referred to in the Act as a "criminal record certificate"); this would only be available for roles, professions or employment that fall within both  the  Rehabilitation  of  Offenders  (Exceptions)  Order  1975  and  the Rehabilitation of Offenders (Exceptions) (Jersey) Regulations 2002.
3. The matter is urgent because new arrangements for vetting and barring (the process by which decisions are made regarding the suitability of individuals to work with children or vulnerable adults) are due to be introduced in the U.K. from 12th October 2009. The introduction of those new arrangements will affect  Jersey's  ability  to  access  crucial  information  for  the  purposes  of safeguarding our local children and vulnerable adults. Extending Part V of the Police Act 1997 to Jersey will allow for continued access to that information after 12th October 2009.

Historical background

4. The U.K. Vetting and Barring Scheme

In response to the Soham Inquiry and the subsequent Bichard Report, the U.K. Government  is  establishing  a  new  Vetting  and  Barring  Scheme. Recommendation 19 of the Bichard Report, states –

"New arrangements should be introduced requiring those who wish to work  with  children,  or  vulnerable  adults,  to  be  registered.   The register  would  confirm  that  there  is  no  known  reason  why  an individual should not work with these clients."

5. In March 2005 it was proposed to implement Recommendation 19 through the development of a central scheme whereby unsuitable people would be barred from working with children and/or vulnerable adults, with the objectives of –

Minimising risk of harm posed to children/vulnerable adults. Including those in paid and unpaid work.

Centralising the vetting process.

6. The  supporting  legislation  for  the  scheme  is  the  Safeguarding  Vulnerable Groups Act 2006 (SVGA), which addresses the systemic failures identified by the  2004  Bichard  Inquiry  arising  from  the  Soham  murders.  The  new arrangements for vetting and barring are due to be introduced in the U.K. in managed phases' over a 5 year period from 12th October 2009.

7. In summary, the SVGA stipulates that –

The ISA will make all decisions on those that should be barred from

working with children and/or vulnerable adults.

The  ISA  will  deal  with  activities  classified  as  regulated'  or

controlled', whether paid or voluntary. These can be defined as –

Regulated –  having  direct  contact  with  children  and vulnerable adults.

Controlled –  support  roles  involving  irregular  and  indirect contact with children and vulnerable adults.

Two separate, but aligned, ISA barred lists will exist (for children and

for  vulnerable  adults)  replacing  the  current  List  99  (barring information,  held  under  Section 142  of  the  Education  Act  2002), disqualification,  Protection  of  Children  Act  list  (POCA),  and Protection of Vulnerable Adults list (POVA).

Limited  rights  of  appeal –  some  offences  will  result  in  automatic

barring  with  no  right  to  representation;  others  will  allow representation, although barred until proven not to pose a risk.

Criminal offences to underpin the scheme will be created, relating to

both employers and employees, and punishable by fine.

Referrals  may  be  received  from  a  variety  of  sources,  including

employers, regulatory bodies and the public. There is a duty to refer in certain circumstances.

8. The ISA will be working in partnership with the CRB, an executive agency of the U.K. Home Office, to deliver the new service.
9. The intention of the new ISA is that it will receive information from a range of sources, enabling it to make decisions as to whether an individual poses a risk to children and/or vulnerable adults, based on the whole picture. Under the SVGA, employers and service providers must refer information to the ISA when they have dismissed an individual, or an individual resigns because they harmed, or may harm a child or vulnerable adult. Information must also be referred to the ISA where –

An individual who is working closely with vulnerable groups has

harmed, or may harm, a child or vulnerable adult.

An individual who might in the future work closely with vulnerable

groups has harmed, or may harm, a child or vulnerable adult.

The employer or service provider deems that the ISA may consider it

appropriate to bar the individual.

Relevant information must be referred as soon as it becomes available. The aim is that the scheme will reduce the time between an individual becoming a known risk and that individual being barred.

Implication for Jersey

10. The  establishment  of  the  ISA  in  the U.K.  from  October  2009  marks  a transition point for the Island. From this point, List 99, POCA and POVA information sources will be lost as all existing lists become absorbed into ISA. The key aim behind extension of Part V of the Police Act 1997, therefore, is to ensure continued access to barring information from October 2009.
11. CRB enhanced disclosure returns will include the barred status of individuals along with all conviction information (spent and unspent) and non-conviction information. Thus, should the Island be able to establish access to the CRB for disclosure  checks,  information  on  barred  status  would  remain  available. Enhanced disclosure applications would be required for roles working with children or vulnerable adults.
12. Under Article 113B(2)(b) of the Police Act 1997 an enhanced disclosure is available for the purposes of an "exempted question", which is defined in section 113A(6) of the Police Act 1997 .
13. A recent amendment to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 means that a question from Jersey is an exempted question where it relates to a person's suitability for a particular role, office or employment that falls both within Article 3 of the 1975 Order and also the Rehabilitation of Offenders  (Exceptions)  (Jersey)  Regulations  2002.  This  will  include,  for example, doctors, teachers, foster carers and police officers.
14. CRB standard disclosure returns will include information on both spent and unspent  convictions,  but  no  information  regarding  barred  status.  Standard disclosures will be available for roles under the Rehabilitation of Offenders (Exceptions) (Jersey) Regulations 2002 which do not involve safeguarding issues, for example Judicial appointments, advocates, solicitors and firearms dealers.
15. Jersey and Guernsey have been working very closely together to address the issues raised in the Islands by the U.K. legislative changes. The States of Guernsey  are  currently  in  the  process  of  establishing  a  sister  Guernsey Vetting Bureau' for processing CRB applications.

Legislative changes

16. A draft Order in Council setting out precisely how Part V of the Police Act 1997 could be extended to Jersey is under discussion between legal advisers in the United Kingdom and Jersey. A draft agreed between legal advisers in both jurisdictions will be available for perusal by States Members in advance of the debate on 8th September 2009. A copy of Part V of the Police Act 1997, as enacted in the U.K., is attached.

17. It is proposed that the following provisions of Part V be extended to Jersey, with modifications as necessary –

• section 112  (criminal  conviction  certificates) –  to  come  into  force when commenced in the U.K.;

• section 113A (criminal record certificates);

• section 113B (enhanced criminal record certificates);

• section 113BA (suitability information relating to children);

• section 113BB (suitability information relating to vulnerable adults);

• section 113BC (suitability information: power to amend);

• section 113C  (criminal  record  certificates:  suitability  relating  to children);

• section 113D  (criminal  record  certificates:  suitability  relating  to adults);

• section 113E  (criminal  record  certificates:  specified  children's  and adults' lists: urgent cases);

• section 113F (criminal record certificates supplementary);

• section 114 (criminal record certificates: Crown employment);

• section 116  (enhanced  criminal  record  certificates:  judicial appointments and Crown employment);

• section 117 (disputes about accuracy of certificates);

• section 118 (evidence of identity);

• section 119 (sources of information);

• section 119B (independent monitor);

• section 120 (registered persons);

• section 120ZA (regulations about registration);

• section 120A  (refusal  and  cancellation  of  registration  on  grounds related to disclosure);

• section 120AA (refusal, cancellation or suspension of registration on other grounds);

• section 120AB  (procedure  for  cancellation  or  suspension  under section 120AA);

• section 122 (code of practice);

• section 122A (delegation of functions of Secretary of State);

• section 123 (offences: falsification, &c);

• section 124 (offences: disclosure);

• section 124A (further offences: disclosure of information obtained in connection with delegated function);

• section 125 (regulations);

• section 126 (interpretation of Part 5);

• section 127 (saving: disclosure of information and records).

States endorsement

18. Before an Order in Council is made extending the provisions of Part V of the Police Act 1997, the views of the States of Jersey must be sought, by virtue of Article 31 of the States of Jersey Law 2005; this requires that, where it is proposed that an Order in Council should be made extending to Jersey the provisions of a U.K. Act of Parliament, the Chief Minister shall lodge the proposal in order that the States may signify their views on it.

19. The States are asked to signify their agreement with the substance of the Proposition; the draft Order in Council will be finalised in consultation with officials in the Law Officers' Department, the Home Affairs Department and legal advisers and other officials in the Home Office and the Ministry of Justice. Once a final draft has been agreed, the draft Order will be approved by the Minister for Home Affairs in the first instance, and then submitted to the Privy Council to be made at its meeting on 15th October 2009.
20. The Order in Council, once made, would be registered in the Royal Court before coming into force in Jersey. Those provisions of Part V of the Police Act 1997 that are not in force in the U.K. upon registration of the Order in Council in the Royal Court will not come into force in Jersey until such time as they come into force in the U.K.

Financial and manpower implications

21. Inasmuch as the Order will extend existing legislation to Jersey, there will be no additional manpower, revenue, capital or further legislative requirements arising.  However,  the  consequence  of  the  CRB  access  thus  achieved necessitates the establishment of the Jersey Vetting Bureau; this would be a body  recognised  and  registered  by  the  CRB  as  working  in  line  with  its directives and would administratively process applications.
22. It has been identified that a cost-effective solution would be for this Bureau to be positioned within the responsibilities of the States of Jersey Police. At present, the States of Jersey Police Force is the Jersey authority within local and national vetting arrangements, and the aim is to utilise this ready-made' centre of expertise in, and knowledge of, disclosure procedures'.
23. There is an initial budget allocation of £98,000 in 2009, and it is intended that an  administrative  charge  will  be  introduced  to  meet  the  full  costs  of  the service,  once  established.  The  staffing  requirement  is  for  one  new  staff member from October 2009 and a second proposed for May 2010, both of which have been included in the States Business Plan.

29th July 2009