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Obtaining and assessing UK and overseas criminal record information First edition November 2008

Obtaining and assessing UK and overseas criminal record information

Introduction 1. In his independent report on personnel security in the transport sector Stephen Boys Smith recommended that the sector makes use of criminal record checks, including checks of overseas records, where a risk assessment identifies relevant posts for these types of check. In response the then Secretary of State for Transport said on 22 July 2008 in a statement to Parliament that she had: asked DfT officials to produce clear guidance to support those organisations whose risk assessments identify posts for which checks of this kind are necessary. 2. Attached is a first edition of such guidance, which has been informed by several industry employers and government departments, and aims to provide useful information for employers on: a) Obtaining UK criminal record information b) Obtaining overseas criminal record information; and c) Assessing criminal record information.

3. The Secretary of State also said in her statement to Parliament that there will be a mandatory regime of overseas criminal record checks in respect of new staff applying for transport security posts which already require a Counter-Terrorist Check. The mandatory requirement will be the subject of later instructions and guidance following a consultation and an impact assessment.

DfT (TRANSEC) November 2008

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Obtaining and assessing UK and overseas criminal record information First edition November 2008

Obtaining UK criminal record information

Introduction 1. This guidance aims to set out advice on how to go about operating a check of UK criminal records in respect of new staff as part of an overall personnel security regime. 2. Best practice guidance on personnel security, such as that published by the Centre for the Protection of National Infrastructure, 1 advocates the use of systematic risk analysis for the identification of threats and assessment of vulnerabilities from people inside an organisation, such as staff and contractors. Once the risks have been identified and prioritised an appropriate and proportionate response can be implemented. 3. Where there is a risk that an unreliable person in a post may compromise the safety or security of the organisation's assets, for example through theft, fraud or malicious interference, an appropriate response may be to assess the criminal background of persons applying for that post. An assessment of criminal history may be less valuable for staff who have been in the post for some time. In this situation ongoing management perhaps offers the best opportunity to assess integrity and reliability. 4. If a risk assessment indicates that a check of criminal background is appropriate it is good practice to establish clear criteria for when and where prospective employees must obtain and present criminal history information. Early notification of the need to provide such information is essential to prevent unnecessary delays in the process. The requirement should be shown in job adverts/advertising campaigns. It may save much time if the job applicant can obtain the criminality information in advance, and bring it along to the interview or recruitment event. 5. A check of criminal record information will inevitably be a snapshot in time. Because of this it is good practice to enforce a clear and consistent validity period on criminal history information, such as a requirement that the information provided must be less than ten weeks old 2 from the date of issue. Types of UK criminal record information 6. There are four main types of UK criminal record disclosure: · A Basic disclosure, which is available to anyone regardless of their job or position, and reveals convictions which are treated as unspent under the terms of the Rehabilitation of Offenders Act 1974 (RoOA74). Generally these will be recent minor convictions and older, more serious, convictions. A Standard disclosure, which is available via registered bodies, in respect of persons filling certain posts covered by an exceptions order to RoOA74, for example lawyers, bankers and firearms licence applicants.

·

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http://www.cpni.gov.uk/Docs/Pers_Sec_TCM_v2.pdf

Ten weeks might generally be long enough to allow for other information, such as references, to be collected and presented alongside the overseas criminal history information.

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Obtaining and assessing UK and overseas criminal record information First edition November 2008 Standard disclosures reveal all convictions, even those treated as spent under RoOA74 plus police cautions and warnings. · An Enhanced disclosure, which is available via registered bodies, in respect of persons filling certain posts covered by an exceptions order to RoOA74, for example the care of children or vulnerable adults. Enhanced disclosures reveal all convictions, even those treated as spent under RoOA74, plus police cautions/ warnings and additional information held on local police records and considered to be relevant to the position being sought. A `subject access request' can be obtained, by individuals only, from most police stations. It is available pursuant to the Data Protection Act 1998 and normally takes the form of a letter issued by a police authority stating that it holds no information on the individual, or a print-out of convictions and/or cautions listed on the Police National Computer. As such, a `subject access request' is akin to a Standard disclosure and should be volunteered by the individual and never enforced by the employer.

·

7. This guidance is meant for use in posts which are not covered by an exceptions order to the RoOA74, and therefore deals only with obtaining Basic disclosures. There are three UK criminal records offices (the Criminal Records Bureau, Disclosure Scotland and Access Northern Ireland). Only Disclosure Scotland and Access Northern Ireland currently provide a Basic Disclosure service. Obtaining a Basic Disclosure 8. Basic Disclosures can be obtained directly from Disclosure Scotland or Access NI via a paper application. Disclosure Scotland also has a web-based service (see www.disclosurescotland.co.uk . Information on how to

obtain a disclosure in Northern Ireland can be found at: www.accessni.gov.uk). A fee is payable and it is necessary to provide

proof of identity and address history. Applications MUST be made by the individual, although the individual may give permission for the disclosure to be sent directly to an employer. 9. Once the employer is in possession of the applicant's disclosure (the original document is preferable) he can assess its relevance to the decision on whether to offer the individual employment. If the individual is subsequently employed it is good practice to obtain the individual's written consent to retaining a copy of the disclosure on file.

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Obtaining and assessing UK and overseas criminal record information First edition November 2008

Obtaining overseas criminal record information

Introduction 1. This guidance aims to set out advice on how to go about operating an overseas criminal record checking regime in respect of new staff as part of an overall personnel security regime. 2. Best practice guidance on personnel security, such as that published by the Centre for the Protection of National Infrastructure 3 , advocates the use of systematic risk analysis for the identification of threats and assessment of vulnerabilities from people inside an organisation, such as staff and contractors. Once the risks have been identified and prioritised an appropriate and proportionate response can be implemented. 3. Where there is a risk that an unreliable person in a post may compromise the safety or security of the organisations assets, for example through theft, fraud or malicious interference, an appropriate response may be to assess the criminal background of persons applying for that post. An assessment of criminal history may be less valuable for staff who have been in the post for some time. In this situation ongoing management perhaps offers the best opportunity to assess integrity and reliability. 4. If a risk assessment indicates that a check of criminal background is appropriate it is good practice to establish clear criteria for when and where prospective employees must obtain and present criminal history information. Early notification of the need to provide such information is essential to prevent unnecessary delays in the process. This requirement should be included in job adverts/advertising campaigns. It may save much time if the job applicant can obtain the criminal information and bring it along to the interview or recruitment assessment event. 5. A check of criminal record information will inevitably be a snapshot in time. Because of this it is good practice to enforce a clear and consistent validity period on criminal history information, such as a requirement that the information provided must be less than ten weeks old 4 from the date of issue. If requiring overseas criminal history information clear criteria are also needed to make it apparent to whom the requirement applies, for instance you may wish to specify the amount of time an individual could have spent outside the UK before overseas CRC information should be required. As an example, the Security Industry Authority (SIA) only require applicants for security licences to provide overseas CRC information if they have spent a period of six continuous months or more abroad over the past five years. Obtaining overseas criminal record information 6. UK criminal record agencies do not have direct access to criminal records maintained by foreign governments, and vice versa. However, the Security Industry Authority (SIA) - a non-departmental public body sponsored by the Home Office - has produced an alphabetical guide to obtaining overseas criminal history information, which can be found on their website http://www.thesia.org.uk/home/licensing/cctv/wizard/overseas.htm. The guide is periodically

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http://www.cpni.gov.uk/Docs/Pers_Sec_TCM_v2.pdf

10 weeks might generally be long enough to allow for other information, such as references, to be collected and presented alongside the overseas criminal history information.

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Obtaining and assessing UK and overseas criminal record information First edition November 2008 updated so it is worth checking at regular intervals. The UK Criminal Records Bureau (CRB) also maintains some information on obtaining overseas criminal history information on it's website at: http://www.crb.gov.uk/Default.aspx?page=2243

7. These approaches centre around assistance obtainable from UK-based foreign Embassies and High Commissions. Where there is no information about a particular country, the relevant Embassy or High Commission can always be contacted for advice. The response times of each country are likely to vary considerably, but it is understood that 3-4 weeks is reasonably common. Some examples of how information can be obtained, that were accurate at the time of publication, are shown below: · Pakistan - Criminal Record Certificates or Certificates of Good Behaviour can be obtained through the Pakistan High Commission in London, who will forward any application to the relevant local authorities in Pakistan. This process may take up to 4 weeks. The documentation should then be verified by the High Commission. Pakistan High Commission 35-36 Lowndes Square London SW1X 9JN Tel: 020 7664 9200 Fax: 020 7664 9224 Web: www.pakmission-uk.gov.pk Email: [email protected] ·

India - Criminal Record Certificates can be obtained from local police stations in India. Applicants should contact the local police station for all areas in which they have lived. The High Commission may be able to provide contact details. The High Commission of India India House Aldwych London WC2B 4NA Tel: 020 7836 8484 Fax: Fax: 020 7836 4331 Web: www.hcilondon.net

·

South Africa ­ Applicants should apply in writing to the Client Service Centre of the South African Police Service. Original samples of the person's finger prints must be sent with any request. These can be obtained at any police station in the UK. The application costs R59.00. Applicants in the UK should contact the South African High Commission for details on how to apply to the Client Service Centre of the South African Police Service. South African High Commission

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Obtaining and assessing UK and overseas criminal record information First edition November 2008 South Africa House Trafalgar Square London WC2N 5DP Tel: 020 7451 7299 Fax: 020 7451 7284 ·

Latvia ­ Criminal record certificates are issued through the Ministry of the Interior at a cost of approx £3. Applications can be made to: Raina bulvaris 6 LV-1050 Riga Latvia Tel: +371 721 9263 Fax: +371 727 1005 Email: [email protected] or [email protected] Website: http://www.iem.gov.lv/iem/2nd/?cat=35 The documentation should then be verified by the Embassy. Embassy of the Republic of Latvia 45 Nottingham Place London W1M 3FE Tel: 020 7312 0040 Fax: 020 7312 0042 Email: [email protected]

8. The quality of information provided differs from country to country. There is no graded list of the relative reliability of the information. Rather it may be necessary to build up an understanding of the processes involved in requesting a check, as well as building a stock of verified samples and contacts from various criminal record issuing authorities in case it is necessary to authenticate a document back to source. 9. Not all countries operate in the same manner. Some will have centralised records whilst others may only have locally held files. Some countries may not have a system for criminal record keeping at all. Moreover, overseas criminal record certificates/checks can take a wide variety of forms such as `certificates of good conduct' or `non-criminal convictions certificates'. Documents should be accepted as `best evidence' provided that the employer is content that this is the only form of `clearance' available and without regard to any preconceptions. Ultimately, best judgement will be needed to evaluate how reliable any particular country may be the website of the Foreign and Commonwealth Office contains useful country profiles: http://www.fco.gov.uk/en/about-the-fco/country-profiles/ 10. In terms of accuracy and authenticity, this typically depends on how `criminal records' are obtained. Some foreign Embassies and High Commissions in the UK initiate requests on behalf of applicants and liaise with the relevant issuing authority abroad. This normally involves providing ID, completing forms, paying a fee and, sometimes, providing fingerprints. The results are passed back to the Embassy or High Commission and, in turn, sent out to applicants. This ensures a safe route which is difficult to tamper with and is often further verified by the UK-based Embassy

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Obtaining and assessing UK and overseas criminal record information First edition November 2008 or High Commission stamp. They are generally content to authenticate any `certificate' obtained in this way as they are likely to have a complete audit trail. 11. In cases where applicants have to apply to the issuing authority directly, the relevant UK-based Embassy or High Commission may still be able to advise on what to expect. It may be good practice to obtain `samples' of criminal record documents from the issuing authority or Embassies/High Commission. Once an applicant has their (directly obtained) criminal record certificate, it is good practice to get this verified/authenticated by the UK-based Embassy or High Commission if there is any doubt as to authenticity. On occasion, it might be necessary to check `certificates' back to source and confirm whether or not the issuing authority has matching records. 12. The key points to note are the type of `certificate' issued and how it was obtained. Dealing with foreign countries will undoubtedly identify a wide variety of ways of working, and there is a balance to be struck between what is required and what can be obtained. An example is Pakistan, where applicants can, if they wish, apply directly to their regional Police HQs. There is no central body that covers all of Pakistan but the High Commission in London can authenticate `certificates' back to source thereby confirming that they are genuine. 13. If information is very slow to arrive from the foreign organisation, or there is an acceptable reason why information cannot be obtained in respect of a particular country or person, then a decision should be made as to whether assurance about the person's integrity and reliability could be gained via alternative methods. An alternative might be a sworn oath and/or a character reference from someone who holds a position which is itself subject to a high degree of background checking such as a public servant, bank manager, magistrate, medical practitioner, officer of the armed forces, teacher or lawyer. Another option might be to limit the individual's access until such time as an acceptable degree of confidence in his or her integrity/reliability has been reached. 14. There are a small number of commercial providers of background checking services and some offer a service which includes checks of overseas criminal records. The DfT has not assessed any of the services and so can make no comment on them. 15. Once the employer has the applicant's overseas criminal history information, and translated version (originals are best), he can assess its relevance to the decision on whether to offer the individual employment. If the individual is subsequently employed it is good practice to obtain the individual's written consent to retaining a copy of the information on file.

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Obtaining and assessing UK and overseas criminal record information First edition November 2008

Assessing criminal record information

Introduction 1. This note is intended to provide guidance to employers on assessing the relevance, importance and impact of criminal history information, including information from outside of the UK. These are guidelines only and must not be used as a substitute for judgement or as a checklist. Criminality, albeit important, is only one measure of a subject's integrity. Basis for assessing criminal history information 2. Assessment should be based on a balanced judgement of both the positive and negative aspects of each case. These factors should be weighed against one another and the security requirements of the post in order to reach a sensible conclusion regarding the subject's suitability for access to sensitive information or assets. Over-emphasis on the negative aspects of the subject may lead to risk avoidance rather than risk management. 3. In most cases very little factual information will be available beyond the age, the title of the offence and the sentence handed down, but, if necessary, it may be possible to obtain, from the subject, further information such as court reports, sentencing reports, probation reports or solicitor's correspondence to help add robustness to a decision. 4. Assessors should remember that they are not passing moral judgement on the subject, and must not allow their judgement to be clouded by moral or cultural preconceptions. The purpose of any type of `vetting' is to objectively determine the degree to which the subject may present a security risk if employed in a sensitive post, putting aside any preconceptions about the individual. 5. It is important to give due consideration to any mitigating factors that are associated with adverse information about the subject. Assessing criminal history information 6. The assessor must judge whether or not adverse criminal history information reflects a recent or recurring pattern of questionable behaviour. The assessor should take into consideration: a) The age of the criminal convictions, including, where known, the date of the offence as this may be some time before the date of conviction. b) The seriousness of the conviction. A good measure of this is the sentence handed down by the court. For example: · · · a small fine might indicate a mildly serious offence. a larger fine or other non-custodial sentence might indicate a moderately serious offence. Up to six months imprisonment, even if suspended, indicates a high level of seriousness.

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Obtaining and assessing UK and overseas criminal record information First edition November 2008 ·

More than six months imprisonment, even if suspended, indicates a very high level of seriousness.

c) The nature of the offence, taking into account the degree of violence, dishonesty or abuse of trust and, if known, whether the victim was particularly vulnerable. d) The circumstances of the offence, taking into account any mitigating circumstances such as provocation or coercion and the maturity of the individual at the time. e) Whether the subject pleaded guilty to the offence and has voluntarily disclosed the conviction and whether the criminality appears to be a one-off or part of a pattern of offending.

Making a judgement 7. If the assessor determines that the adverse information regarding a subject is insufficient grounds to deny access to sensitive assets then consideration should be given as to what kind of programme of ongoing personnel security management is needed, reflecting the level of risk entailed in allowing access. 8. A final assessment should not be made until all available information has been obtained and considered. It is important to: · · · Consider each case solely on its merits. Record clearly the reasons for the decision arrived at. Have a fair and open process for considering appeals (e.g. a senior manager who was not involved in the original decision and giving reasons when the appeal is refused).

9. It may be worthwhile seeking legal advice and engaging with trades unions regarding the processes by which applications and appeals are to be considered.

END

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