Official Report: Minutes of Evidence

The Chairperson (Mr Ross): Joining us at the table are Simon Rogers, Tom Clarke and Mary Lemon. When you are ready, will you briefly outline the purposes of clause 36 to 43 and schedule 4 to the Bill that cover criminal records? Will you cover some of the main issues that have been raised in your written and oral evidence and the five amendments that the Department intend to table at Consideration Stage? We will open it up to members after that.

Mr Simon Rogers (Department of Justice): OK, Chair. Thank you again. We are grateful for the opportunity to outline the provisions set out in Part 5 of the Bill and the proposed amendments being brought forward to reflect developments since the Bill was first drafted. They impact on the Police Act 1997 and are designed to modernise and improve the arrangements for the disclosure of the criminal records checks that are carried out by Northern Ireland's disclosure service Access NI.

The genesis of the proposals is the work and the report by Sunita Mason, who examined our approach in detail. She also reviewed the arrangements in England and Wales. The measures that are outlined in this Part of the Bill reflect many of the recommendations that she made. They also take account of a number of court decisions that have highlighted human rights issues that we considered when developing the system of disclosure.

The overriding purpose of our disclosure system is to provide an appropriate and efficient scheme that safeguards the public from harm. That is particularly so when children and vulnerable groups are involved. There is a careful balance to be struck so that the disclosure of criminal records is relevant to the purpose for which they are sought and respect the rights of the applicant.

There has been much recent debate about how we should approach the disclosure in relation to offences that have been committed by children, and the responses to the Committee's consultation on the Bill reflect that. The Minister has stated that he recognises that young people who have been involved in minor offending should, where possible, be given the opportunity to move on with their lives and make a positive contribution to society. While the provisions in the Bill focus on disclosure by Access NI, they also take into account those concerns and will ensure that Access NI only discloses information on youth offending when relevant and appropriate.

In bringing forward the proposals in the Bill, we have, of course, engaged with stakeholders. We will continue to do that as, for example, we develop the guidance that is provided for.

I will now turn briefly to the provisions. Clause 36 provides for the introduction of measures to end the current system of issuing two certificates for standard and enhanced checks. Instead, it allows for a single certificate to be sent to the applicant only. That will give individuals the opportunity to see the information on their certificates before they provide it to an employer. That is in case they wish to challenge something in it.

Clause 37 provides that children under 16 years of age will not be subject to criminal records checks except in certain prescribed circumstances; for example, those who are work in home-based occupations, such as childminding or fostering.

Clause 39 contains a number of changes that relate to the disclosure of relevant information by the police. Those include a provision to enable a person to dispute information via an independent monitor. The clause also establishes the requirement for a statutory code of practice to assist the police in deciding what information should be released. We have tabled a minor amendment to clause 39 to make it clear that that code must be published.

Clause 40 allows for the introduction of portable disclosures, which were mentioned earlier. On 29 January, we were informed that, due to delays in the England and Wales Disclosure and Barring Service's (DBS's) modernisation programme, we would not be able to introduce that initiative in the timescale that we had planned. That has been delayed, and I am sure that you will want to come back to that.

Clause 41 establishes arrangements to allow self-employed people to obtain enhanced criminal record certificates. That is a change to cover a gap in the current safeguarding arrangements.
The other amendments include the provision for the introduction of a review mechanism for the filtering scheme. That would enable a person to seek, in certain circumstances, a review of their case, where a conviction or other disposal has not been filtered for their standard or enhanced criminal record certificate. Having given careful consideration to the views of stakeholders, the draft amendment includes an automatic referral for cases that involve offences that were committed under age of 18, when that was the only offending.

The other proposed amendments include a new clause to facilitate the exchange of information between Access NI and the DBS for barring and an enhancement to clause 40 in light of experience in England and Wales that will allow us to exclude a small number of applicants for enhanced checks relating to home-based positions from the update service so that we avoid the potential for unintentional disclosure of third-party information. A further amendment provides statutory cover for the storage of cautions and other diversionary disposals.

In responding to the Committee's consultation on the Bill, stakeholders were broadly supportive of the measures that have been set out. Concerns related mainly to the disclosure of information in relation to children and young people, particularly its impact on education and employment opportunities. The Minister recognises that the Bill will not address all the issues that have been raised, but he believes that the provisions, including, in particular, the filtering review mechanism, represent an appropriate regime. Stakeholders sought a commitment from us that we would consult fully on the detail of the review. We have given that commitment and are happy to repeat it.

In summary, the measures in this Part of the Bill have been brought forward to achieve an appropriate balance between the need to support the rehabilitation of adults and young people who have offended while protecting those in society who are vulnerable.

The Chairperson (Mr Ross): OK. Thank you. You mentioned the portable checks and said that there will be a delay with those. That was meant to go live in August. When do we anticipate that that issue will be resolved?

Mr Simon Rogers: We have been in contact with DBS, as I mentioned, and it has told us a date of 2016, and that is obviously not satisfactory. In fairness to it, it does not want to give us another date that it will fail on, nor do we want another date that we do not achieve. It is doing due diligence to give us a date by which we be can be clear that this will go live. That is obviously a setback for us because we had been making those plans.

We are introducing a new IT system in Access NI that is designed to enable this. That is being done in a way that will enable us to plug it in at a later stage, so there will not be harm to the work that we have done. The reason that I mention that is that we will not have to redo the IT system to plug it in at a later stage and will be ready. However, we are reliant on DBS's modernisation programme. I cannot give you a date today, but we will notify the Committee when we know.

Mr McGlone: Thanks very much indeed. I picked up on prescribed circumstances in clause 37. What did you say that those were?

Mr Simon Rogers: Home-based occupations are one example.

Mr McGlone: Obviously, if they are going to be prescribed, you have to have an idea of what the prescriptions will be.

Mr Simon Rogers: They will be brought in through secondary legislation, so they will come before the Committee and the Assembly.

Mr McGlone: I presume that you are picking up on my point about Access NI, the practical operational aspects of Access NI and the enhanced checks. I do not know whether you were in the room.

Mr Simon Rogers: I was indeed, yes. The position with Access NI checks at the minute is that 72% of checks are done within five days and will leave the building at that point. The other proportion — Tom can come in here — is sent to the police for checks because of potential issues. At present, our average turnaround in respect of those cases is 16 days, but that is an average. We are conscious that, at present, partly because of Christmas being a number of days out, which does not come out of our target, we are now not meeting our published targets through December and into January. That is a matter of concern to us, because we take pride in trying to achieve the targets. Certainly, the basic and standard checks are all issued 100% within the target. We have acknowledged that there are some delays with the enhanced checks, and we have regular meetings with the police to try to resolve those. They have identified a programme to try to bring us back within target. One aspect of it is that we had more applications than we anticipated, and that obviously puts pressure on the system. We are turning round something like 72% in about five days. The other proportion goes to the police, and we acknowledge that there is an issue around the timescale on those.

Mr McGlone: Of course, people come to me when there is a problem. One lady has been waiting for two months and cannot get into her work. I have no doubt that the clearance will come. It really is unsatisfactory at a time when some of us are preaching about the economy and trying to get people into work, and they physically cannot get in, not because work is not available but because of a block in the system. I would appreciate it if you would raise that matter. I have asked my colleague on the Policing Board to raise it with the police, and that has gone to senior level. You have those coordinating meetings. We can talk about all the theory that we like here, but the practice is different. It is still unsatisfactory for the remainder of that 28% if it is causing problems and difficulties in the community.

Mr Simon Rogers: I completely accept the point that you make. A small proportion of them are quite complex cases. With regard to a number of the others, neither the police nor Access NI would say that it is a satisfactory situation, but we are trying to resolve it. It is helpful to raise the matter with the Policing Board. This is partly about putting the resources in place, and we are trying to get on top of it as quickly as we can.

Mr McGlone: I have one further point, which I raised earlier with Ms Campbell. First, what is the delay with the update service? Consequentially, will it ease the delays that we have just talked about?

Mr Tom Clarke (Access NI): The delay is purely a technical delay. The Disclosure and Barring Service has a tried and tested method in its update service, and we want to join into that. It is modernising that service and making it better. The agreement always was that we would come in when it delivered the modernised service, which we believed would be in August this year, but the Disclosure and Barring Service has now put that back to 2016. Once it does its modernisation and update service — for want of a better way of saying it — then we in Northern Ireland will join in, and that will be a product that we can offer to citizens here.

Mr McGlone: Do you hope that it will speed up things?

Mr Tom Clarke: It will depend on the uptake of the update service. If people decide to subscribe to the update service —

Mr McGlone: By subscribe, you mean pay.

Mr Tom Clarke: Yes, for certain people. Volunteers will not have to pay to join the update service, but people who pay for their disclosure check will have to pay to join the update service.

Mr McGlone: Can you determine the distinction between the volunteer and the person who has to pay?

Mr Tom Clarke: At the minute, if you are a volunteer — someone who works for a not-for-profit organisation — then, as such, you get a free disclosure check from Access NI.
You only have to pay if it is a non-volunteer check. If you are a teacher or a nurse or someone who is in paid employment, that check has to be paid for. If you are working for a church or one of our voluntary organisations in a voluntary capacity, the check would not have to be paid for in those circumstances.

Mr McGlone: I presume that you do not anticipate any rise in the amounts for this new service.

Mr Tom Clarke: At present, the annual subscription, which is paid in England and Wales, is £13, and we imagine that there will be the same subscription of an additional £13 per annum for anyone who wants to join the update service.

Mr Simon Rogers: We are not anticipating any change to the Access NI fees as a result of the update service, just to be clear.

Mr Elliott: Thanks for the presentation. A few of my questions have just been asked by Patsy. Can I explore a wee bit about what your targets are? You said that you were not meeting them at present. What are they for Access NI?

Mr Tom Clarke: The targets are to issue 95% of our basic and standard checks within 14 days, and we meet that target all the time. With the enhanced checks, it is to get 70% out in 14 days and to get 90% out in 28 days. We are meeting the target of 70% in 14 days, but we cannot meet the 90% in 28 days at present because of the delays that we have with the PSNI.

Mr Elliott: Because of the PSNI.

Mr Tom Clarke: To put it another way, every application that comes in to Access NI is processed within six days, so every application is dealt with and processed. However, a proportion of those applications must be referred to the PSNI.

Mr Elliott: Is that a standard proportion or is it specific cases?

Mr Tom Clarke: It is specific cases that are set out in legislation, and a specific reason is, for example, if someone is in a home-based occupation — if they were fostering, adopting or childminding — that must go the PSNI. If an individual has a criminal record, that must also go to the PSNI. If an individual is flagged up on the intelligence database that we can use, it must also go to the PSNI. There are criteria in legislation for when a case must be passed to the PSNI, and that is what we do.

Mr Elliott: Do you have some of those checks in process for over two months?

Mr Tom Clarke: The PSNI has some our checks for over two months, yes.

Mr Elliott: If you are doing voluntary work for an organisation and you have a role, sometimes you are getting Access NI checks every couple of months. Will this legislation assist with that in any way?

Mr Tom Clarke: That is a reference to the update service. The update service will allow people to subscribe to a service whereby the information on their check is monitored and updated regularly. The idea is that they could take the current certificate that they have to a new voluntary organisation. That voluntary organisation can do a free online check to see whether the information on that certificate has changed or remains the same. If it remains the same, the organisation can go ahead and employ that individual or allow them to volunteer for it without having to get a new check.

Mr Elliott: Does it cost it money to do that?

Mr Tom Clarke: No, it does not cost it any money to do that. It is a free online check by the employer.

The Chairperson (Mr Ross): Thanks, Tom. We have a live update. I understand that the Minister is on his feet. I say that just in case Division Bells go off shortly. If members are succinct with their questions, we might get through this session. No pressure, Raymond.

Mr McCartney: I have a number of points. The Children's Law Centre was very clear that diversionary disposals should not be disclosed in criminal records. Why do you think that it is necessary? It said that international standards were clear, so I wonder what the response of the Department is to that.

Mr Simon Rogers: Sunita Mason, in her review, looked at that issue, and her conclusion was that there are certain things in these disposals that ought to be disclosed and that Access NI, therefore, ought to disclose them. There are arrangements in place, however, through the filtering, and, indeed, this legislation will bring in a review mechanism to enable an individual to look at the circumstances of that disclosure and, if it is disproportionate, to challenge it.

In addition, the filtering arrangements that we will now apply — these are the statutory arrangements that we have brought in — will remove automatically a number of offences, depending on their severity as long as there is no repetition, etc, either quickly or over a period of time. It just depends on the nature of the offence. Our view is that we have to balance the rights of an individual who is applying for the certificate against the risks to the vulnerable adults or children who the person would be working with.

Mr Tom Clarke: The genesis of it is in Sunita Mason's recommendations. She recommended that we should disclose that information, but, as Simon said, it is subject to filtering arrangements.

Mr McCartney: How will the automatic referral to the independent reviewer work?

Mr Simon Rogers: That is part of the filtering part of the review process. Having had various discussions, we have concluded that a young person, whose only offending was as a young person, does not have to make a case for their offence to be reviewed. It will go automatically to an independent person, who will take a look and decide whether or not it is proportionate for that to remain on the record. That is how it will work in practice.

Mr McCartney: Once that review is done, if it is removed, is that it removed for ever?

Mr Simon Rogers: Do you mean for the purposes of the Access NI certificate?

Mr McCartney: If you go into the review process, and it recommends that the offence is removed, is it removed in its entirety or is it retained somewhere for the future?

Mr Simon Rogers: It will be retained on your criminal record because, if that person is back in court, that may be relevant to the offending.

Mr McCartney: If it disappeared under the rehabilitation of offenders legislation, would it then be removed for ever?

Mr Simon Rogers: No.

Mr Tom Clarke: A diversionary disposal, such as a caution or an informed warning, is automatically spent under the rehabilitation of offenders legislation. Simon is talking about where we issue an Access NI check and there is information about someone who was, for example, 17 when they offended. We are saying that we will automatically refer that to that independent person to decide whether or not we should disclose that. There will be an independent review before that information is disclosed, and we will take the advice of the independent reviewer on that point.

Mr McCartney: I think that the Children's Law Centre made a criticism that it seems to be rowing in the wrong direction in terms of disclosure. Is there any provision for the Department to review the Rehabilitation of Offenders Act in light of the changes made in England recently?

Ms Maura Campbell (Department of Justice): There are no plans at present for a review of the Rehabilitation of Offenders (Northern Ireland) Order 1978, which is the comparable Northern Ireland legislation.

Mr McCartney: I say that in light of our previous subject of prosecutorial fines. People were perhaps convicted of something 20 or 30 years ago when they were under the age of 18. If they were now in front of the courts, they would have this. I notice that it mentions offences. It says:

Under the rehabilitation of offenders legislation, if you have two convictions, even they are from the same event, it is on your record for ever. That was part of the discussion with Bob Ashford.

Mr Tom Clarke: That is a slightly different thing. It could be spent under the rehabilitation of offenders legislation. Bob Ashford was referring to the filtering mechanism that Access NI applies if you have more than one conviction. At present, that will always be disclosed. You are right on the point, but it is not about the Rehabilitation of Offenders Act but the Access NI legislation.

Mr McCartney: In terms of that wider discussion, Simon Weston and Bob Ashford made the point that they committed offences when they were teenagers, yet they are now in their 50s and that offence can still be pulled out somewhere along the line. Circumstances and everything have changed in their life, and you can look at their contributions to life in general, but when they were going to make another contribution, they were denied the chance because of offences from when they were 14 and 16 respectively.

Mr Simon Rogers: The Minister met them and was very sympathetic to their point. The regime that we are putting place would enable their circumstances to be looked at, whether through the filtering, which does not apply at present if there are two offences, and through the review, because an adult — we talked about automatic referral for a youth — can seek a review and say, "This is disproportionate. I was 15 when I broke the greenhouse window. This should be removed from my record. It is not relevant". This reviewer could then say, "You are quite right: it is coming off".

Mr McCartney: Do you imagine that the mechanism will lead to that type of conviction being pushed aside?

Mr Simon Rogers: Yes.

The Chairperson (Mr Ross): Thank you, Maura, Simon, Tom and Mary.