JOINT COMMITTEE ON THE CONSTITUTIONAL AMENDMENT ON CHILDREN debate -
Wednesday, 23 Apr 2008

Vetting Procedures: Discussion with Access NI and PSNI

Chairman

Good evening to the guests and members of the committee. We offer a warm welcome to Mr. Tom Clarke, general manager Access Northern Ireland, Detective Superintendent Dr. Andrew Bailey, head of branch for criminal justice, PSNI, and Inspector Brian Downey, criminal records office, PSNI. We appreciate very much that they have come to meet the committee. We have been talking a good deal about vetting systems and reviewing in some detail what the PSNI has been doing. We were very keen to cash in on its experience and are happy that its representatives have come to share it with us.

We have met our Garda authorities and we will see them in action in Thurles quite soon. I know that changes were brought about when the new Access Ireland offices were set up.

Perhaps Superintendent Dr. Andrew Bailey will commence the proceedings. Is that correct?

Dr. Andrew Bailey

That is correct.

Chairman

The three guests are most welcome. Members present are Deputy Brendan Smith, the Minister of State with responsibility for children, Senator Maria Corrigan, Deputy Seán Ó Fearghaíl and the Leas-Cheann Comhairle of the Dáil, Deputy Brendan Howlin. Other members will come in and I am in the Chair.

Dr. Andrew Bailey

I am head of branch for the criminal justice branch in the PSNI. I have some speaking notes and I believe members will have a copy. I might not mention everything in the paper, but will concentrate on the highlights. I am conscious that we are trying to second guess what the committee might be interested in. If there is anything in particular that members are interested in, I shall try to respond accordingly and give what information I can.

Chairman

Our members may be keen to ask questions.

Dr. Andrew Bailey

That is fine. The area I am in charge of in the criminal justice branch covers extradition, international mutual assistance, crime disclosure, intelligence disclosure and vetting — as well as some IT projects connected with information sharing. I mainly wanted to cover issues around the legal position, decision making, soft intelligence and the relationship between the PSNI and the Garda Síochána. I thought perhaps ten minutes should cover all of those items.

Members will be familiar with the tests we use for practice in this area, vetting. That is, practice must be reasonable, proportionate and in accordance with the law. Certainly, from 1 April we have a specific legal provision which places a duty on me as the chief constable's delegate to disclose information in certain cases. Before 1 April we did not have a specific legal basis in which to do this work. We operated on a general provision, a part of the Police Act that indicates the PSNI has a duty to prevent and detect crime. In the absence of a specific legal provision we relied heavily on the detection and prevention of crime.

Obviously we have different levels of vetting checks. The committee might be particularly interested in the enhanced disclosures, and what people might refer to as pre-prosecution data. In Northern Ireland, both before 1 April and with the introduction of Access NI, we disclosed information to prospective employers. This will be data on both convictions and other information which is intelligence — data that might not or might have reached court, but where there was a finding of "not guilty". The chief officer's delegate — in this case, me — has to ensure that the data are relevant and that the disclosure is relevant to prevent people who should not, having access to children and vulnerable adults.

We can go about this in two ways. One is where somebody applies for a check and I can authorise a disclosure directly to the employer and the applicant. If it is more sensitive information that might harm or prejudice a current investigation, I can authorise the disclosure directly to the employer, but not give a copy to the applicant — and I can talk about the decision making process that we go through.

In Northern Ireland, through the years we have had a robust outlook in this work in that we know it will bring us into conflict with people. People will not like the work we are doing, or will disagree with us when we make disclosures. However, we have not had any cases, as yet, where we have been taken to court. If the committee does not mind, I shall just outline the decision making principles we use. Obviously there is an entire process that we go through. It is an ACPO process — the Association of Chief Police Officers for England, Wales and Northern Ireland. ACPO got together with the criminal records bureau to devise the protocol known as the quality assurance framework. In that framework we have a series of matters to go through to make sure the information is about the particular person we are being asked to check. We look to see whether the source of the information is credible and whether there is any corroborating information from other organisations. We must present the information in a balanced way that will take account of the suspicions but also what the applicant said about the particular allegation. We disclose information on convictions and intelligence, as well as non-conviction information. Obviously, it is better if the information is current or recent. To this end, we go through a relevancy test.

We are not in the business of maliciously disclosing information on people. We must have the right reasons. People might not always agree with my judgment in these cases but it is not done maliciously. It is done to protect children and vulnerable adults.

The final decision about employing an applicant obviously does not rest with the police service but we are duty bound to tell the employer in certain cases and it is the employer who makes the decision. Members should have a copy of a document entitled MP 9 — Human Rights Guidance. I will go through it, not by way of a case study as it might take too long but by outlining some highlights of the procedure.

This is the very end of the procedure. If the information is about the applicant and judged to be relevant, it comes to me to make a decision. We use a human rights matrix. An example case might be that of a teacher who has been accused of having sexual relations with, say, a 15 year old pupil but the case did not go to court because there was no corroborating evidence and the victim declined to go forward for a prosecution. In many cases, victims will decline because they think going through a contested trial would be very difficult, which it many cases it would be. In the example the teacher claims he is completely innocent. Members will see the human rights rating table at the bottom of the document. I must form a judgment about the risk this person poses to vulnerable groups such as children or vulnerable adults, for example, adults with developmental disabilities or mental health problems. In such a case, would failure to disclose cause a severe, moderate or low risk to a vulnerable group? Do members have a view of the risk this individual might pose?

Chairman

It is a test.

Dr. Andrew Bailey

It is a matter of judgment.

Chairman

Yes.

Dr. Andrew Bailey

Some committee members might say it is answer A, while others would say it is answer B. I look at all the case papers and generally, in such a case, unless we think it is a malicious allegation, I categorise it as being in risk group A, severe risk. If I categorise it as such, this means I do not need any further deliberation and we will disclose a limited amount of text to the employer or prospective employer. If it is category B or C, we must ask whether the disclosure would cause a disruption to the private life of the individual concerned and whether that disruption would be moderate or severe, and so on. Members will see that if the case is categorised as B3, this means I can disclose. If it is category B4, with a moderate risk to a vulnerable group and where disclosure would cause severe disruption to the private life of anybody, but mainly that of the applicant, I must very carefully consider whether the risks posed to that vulnerable group would outweigh the applicant's right, or somebody else's right, to privacy. Members will understand it is down to the judgment of the senior officer. In terms of the law from 1 April, as well as the procedure we used before that date, the ACPO officer is duty bound, if there is relevant information, to make a disclosure.

People will be wondering about both conviction information and non-conviction information. The enhanced disclosure is concerned with everything the police service might know about an individual, which might be a conviction, allegations that do not go to court or perhaps pure intelligence.

Our relationship with the police in the Republic in regard to information sharing is very good. We consult with each other on individual cases when the applicant either discloses an address in the other jurisdiction or where we suspect there is a history in the other jurisdiction. Other types of information sharing in which the police on both sides of the Border engage are centred around the management of sex offenders. As both states signed a memorandum of understanding, North and South, we now share lists of people who are either convicted sex offenders or registered sex offenders. The Republic will know about all our cases and vice versa, which helps police officers on both sides of the Border to manage the people concerned and minimise the risks involved.

In the North we use a system for sex offenders known as ViSOR, the Violent and Sex Offenders Register. It is a computerised system on which we and police forces in England, Wales and Scotland are very keen. When in discussions with police officers in the Republic about whether they wanted to adopt the ViSOR system, it was mentioned that there were constitutional difficulties with the Garda sharing information with us or joining ViSOR. In terms of the management of sex offenders, however, the situation is extremely positive.

I will move on to the issue of the IMPACT nominal index. Many members will know of the Bishard inquiry into the Soham murders, for which Ian Huntley was convicted. Falling out of the Bishard inquiry are a number of what, in project management terms, we call Bishard workstreams, one of which is the IMPACT nominal index. I mention this because it might be relevant to the committee's considerations. The information shared between police forces in England, Wales, Scotland and Northern Ireland, if I am honest, was not up to the mark at the time Ian Huntley was being vetted for various jobs. To address that gap, the Government approved the IMPACT nominal index in order that forces across England, Wales, Scotland and Northern Ireland could extract data from their criminal intelligence systems and send it to a central database in London. They send flags in order that if a police officer anywhere in the United Kingdom checks or investigates an individual in respect of child protection related matters, the system might produce a hit for, say, ten police forces and indicate, for example, that Greater Manchester Police might have information on the individual in question. The officer can then go to Greater Manchester Police force and explain that he knows from the IMPACT nominal index that that force holds data on the individual in question and request more details.

This does not involve exchanging all the details about a case. The presence of a flag indicates to us, mainly for the purposes of child protection issues and sexual offences, that a particular police force in the United Kingdom possesses information on the individual in question. In the case of Ian Huntley, several police forces had crucial information about him but we were not aware of this. If we cannot share data and intelligence across borders, we should at least be able to share flags. If I check somebody on the IMPACT nominal index and there is a flag for Leicestershire, for example, I would telephone the single point of contact there for details. I will be asked why I am seeking the information and will have to make the case that the imparting of this information is justified. If the justification I offer is accepted, the information is shared. In cases where it is difficult to share data and intelligence, the use of flags in this way offers a way forward.

Access Northern Ireland was in operation before 1 April even though it did not have a statutory basis. There were arguments about whether we should have proceeded without that statutory foundation. Now that the Northern Ireland Office has commenced Part V of the Police Act 1997, we are in a much better position. It can be difficult to access information and we have to justify what we are saying. Ultimately, the protection of children and vulnerable adults is greatly assisted by the commencement of the legislation.

Mr. Tom Clarke

I thank the Chairman for the invitation to attend today's meeting. Access Northern Ireland began work on 1 April. I come to the meeting with three weeks of operational experience. I am not sure whether that makes me an expert but I will do my best to explain the issues.

Access Northern Ireland is the culmination of several years' work and a €2 million investment in resources and technology. It is a disclosure body, working under the same legislation and on the same basis as the Criminal Records Bureau in England and Wales and Disclosure Scotland. Our purpose is to provide criminal history information to enable employers make decisions about individuals wishing to work for them on either a paid or unpaid basis.

As Dr. Bailey observed, the main legislative basis for our work is Part V of the Police Act 1997. This enabling legislation allows the Secretary of State to issue information about criminal history. The police must disclose that information to us, as Dr. Bailey said. There are several supplementary regulations which cover the registration and disclosure process in Northern Ireland. We undertake three types of disclosure. A basic disclosure is applied for by an individual and we provide the latter with a copy of the unspent criminal record. That costs £26. A standard disclosure is applied for by a registered or umbrella body. It provides a full criminal record and costs the registered body £28. An enhanced criminal disclosure must also be applied for by the registered or umbrella body. In this case, we provide the full criminal history record as well as the relevant non-conviction information. In addition, we check all the lists from throughout the United Kingdom of people who are disqualified from working with children or vulnerable adults. In other words, it is a triple check. We provide this information to the employer, who must then decide whether to employ the individual in question. If the individual is on one of the disqualified lists, he or she cannot be employed. It is an offence for such a person even to seek employment to work with children or vulnerable adults.

The basic check is used as a general trustworthiness check. In the Northern Ireland civil service, for instance, all applicants are subjected to a basic criminal record check. As a member of the civil service, I must have passed this check. A standard check is done in respect of persons seeking to enter a profession in respect of which there is an exemption under the Rehabilitation of Offenders Act. This would include judicial appointments, medical posts, probation officers working in schools and so on. The enhanced check is designed for persons working in care positions with children or vulnerable adults. These are defined by the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003, and include specific posts, such as worker in a school, foster parent, social care worker and day care worker in a nursing home. Interestingly enough, taxi drivers must have an enhanced disclosure before being issued with a licence. The definitions under the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 are quite wide and draw in a broad range of groups, including voluntary groups such as church organisations and children's clubs. People working on a voluntary basis in any of these organisations come within the scope of the legislation. The general rule of thumb is that an enhanced check must be undertaken in respect of persons with unsupervised access to children or vulnerable adults.

We can directly access the Northern Ireland Criminal Records Bureau. In addition, we can check records in the police national computer, which holds records for England, Scotland and Wales. We do a full criminal history check across the United Kingdom for all our disclosures. We stop there with the basic disclosure, take out the unspent sections and send it out. For a standard disclosure, we include the full criminal record in the disclosure certificate. For an enhanced check, we check the disqualified list for the entire United Kingdom and add in any known conviction or soft intelligence information that any of the police forces decide to disclose to us.

Each check begins with us asking the PSNI whether it has any information on the individual in question. If the person has ever had an address in England, Scotland or Wales, we ask the local police force in that jurisdiction for any relevant information. As Dr. Bailey said, we are also able to check a United Kingdom-wide database for any flags on the individual. If a flag has been posted, we can ask the police force in question for any relevant information. This is useful because not everybody discloses their full address history. If a person withholds the information that they lived in London for a period in the last five years, we may still be able to access any information held by the metropolitan police about the individual concerned using this flagging database. Any such information can be disclosed both to the registered body and to the applicant.

The methodology of applying for disclosure is simple, beginning with the applicant filling out an application form. In the case of basic checks, we send applicants to their local police station to have their identity checked. The identity confirmation is submitted to us and we perform the check and send out the disclosure certificate. In the case of a standard or enhanced check, the applicant fills in part of the form and the responsible or umbrella body must then countersign the application and verify the identity of the applicant. We then ask the PSNI for the relevant information, check the address history, check the databases and issue a disclosure certificate. One of the differences under the new system is that one copy of the certificate goes to the registered or umbrella body and the other to the applicant. Both receive the same information.

We aim to have 90% of our basic tests completed within two weeks. The target is three weeks for standard checks and four weeks for enhanced checks. We are committed to meeting these service standards. We have put certain systems in place with our colleagues in the PSNI, the Association of Chief Police Officers of England, Wales and Northern Ireland, ACPO, and others to ensure we can send information back within those timeframes so that people are not delayed in making a decision on whether to employ an individual.

One of the main changes in the new system is that people now have to pay for the service. In line with other disclosure bodies, Access Northern Ireland is a full cost recovery service. Instead of placing the burden on the general taxpayer, the cost of the service is charged to those who avail of it. However, for those who volunteer for organisations it is free. Consequently, a person who volunteers for a church organisation still can have an enhanced check but there is no cost to him or her. The only exceptions to this rule are if people are volunteering for statutory organisations or if they volunteer for voluntary organisations delivering statutory services. These are the only two exceptions.

The creation of Access Northern Ireland future-proofs the system of providing criminal history information. New legislation is forthcoming on safeguarding vulnerable groups and the establishment of what we call the independent safeguarding authority, which will introduce a system of continuous monitoring of those who wish to work with children and vulnerable adults. Access Northern Ireland will be the gateway to that authority and its role will be to get people from their present position to being registered with the new independent safeguarding authority. However, we will continue to provide for criminal history disclosures to those who need them.

Chairman

I thank Mr. Clarke. With the delegates' agreement, we will take questions from members. The Minister of State, Deputy Smith, has indicated his desire to so do. Thereafter I will facilitate Deputies Howlin and Noonan.

Minister of State at the Department of Health and Children (Deputy Brendan Smith)

I join the Chairman in welcoming the visitors from the PSNI and Access Northern Ireland and I was glad to hear their contributions. The Garda vetting unit has informed members of the degree of co-operation between the Garda Síochána, the PSNI and Access Northern Ireland. Members of the joint committee and others hope such ties can be strengthened to ensure the best possible protection for children throughout the island.

I note that Access Northern Ireland commenced operations on 1 April. Policy and operational matters to do with vetting have changed rapidly in the past five years in both jurisdictions and it is incumbent on everyone to ensure North-South co-operation flourishes in this regard. It is important for members to note that at the recent North-South Ministerial Council meeting at Dundalk a joint communiqué was issued that requested the Department of Health, Social Services and Public Safety and the Office of the Minister for Children in the Republic to establish and co-chair a cross-Border group of officials. Its purpose will be to intensify co-operation on child protection, including issues such as early progress on an all-island child protection awareness campaign, the identification of other medium and long-term measures to improve child protection, including the examination of an all-Ireland approach to child protection, focusing in particular on vetting and the exchange of information, as well as any areas for co-operation on children's services that emerge from the North-South feasibility study of health and social services. My officials and I have a good and positive working relationship with the Minister, Mr. McGimpsey, and his departmental officials. We are in the process of finalising arrangements to hold the first meeting of the group of officials to which I referred, which was mandated by the North-South Ministerial Council to intensify co-operation. It is important to note that such co-operation is under way between both administrations on the island at political and administrative levels.

I wish to ask two or three questions. Was the delegates' work hindered by the fact that until 1 April, they operated on a general legal provision without having a specific statutory basis? I am unclear on the application process. Were I to apply for a teaching position in a school in Northern Ireland, would I have to submit my application directly to Access Northern Ireland or to a regulatory body such as a teaching council? Does such an application pass through an initial clearing house before reaching Access Northern Ireland?

Umbrella and registered bodies were mentioned. The delegates should provide the names of such bodies and the areas they cover. Dr. Bailey spoke, rightly, about the level of co-operation between the police authorities on this island and in England, Scotland and Wales and about access to and the exchange of information. Do the delegates have a good working relationship with similar police authorities throughout the rest of Europe?

Chairman

I understand the delegates wish to respond to each question as it arises.

Dr. Andrew Bailey

I can take the question about the legal provisions, Mr. Downey can reply to the question on EU co-operation, while Mr. Tom Clarke can respond to the question on the registered bodies.

On the legal provisions, I do not believe we were hindered by the lack of a specific statutory basis. We received advice from our human rights lawyer, as well as Government lawyers. It was considered that the general principle of preventing and detecting crime would be sufficient. During the first period that the devolved Assembly was operating, the police tried to put pressure on the Government to commence Part V of the Police Act 1997. We are now in a position where it has been commenced. This simply means we are in a better position when a case gets to court to defend a particular case. It terms of operating day to day, it has not had any effect when one compares what I approved before 1 April and what I have approved after that date.

Mr. Brian Downey

On the exchange of information with EU member states, work is ongoing within the European Union on the sharing of criminal records within participating member states. It is hoped that eventually this will be rolled out to all member states. I understand 12 member states are participating. A framework is being established that will outline common parlance in respect of offences. This will extend to common parlance referring to disposals, or what will happen to someone in court. The results will be forwarded to technicians who will put together a language on computer that will enable the sharing of information between all EU member states. At present there is no requirement on a magistrate to demand someone's criminal history in his or her country of birth. However, legislation is being introduced, under which they will be obliged to take cognisance of such other information.

Dr. Andrew Bailey

This pertains to court proceedings rather than vetting.

Mr. Brian Downey

Correct.

We can approach an authority in England for criminality information, that is, the criminal records of persons from other EU member states. However, it cannot be used for vetting purposes; it can only be used for police investigative roles. It is hoped that, ultimately, this will be rolled out towards vetting.

Mr. Tom Clarke

On the application process, an individual who requires a basic check simply comes directly to us. However, a basic check is not sufficient to get a teaching post within a school, for which an enhanced disclosure is required. In that case, one must come through a registered body. In the case of teachers, there are a number of such bodies. Without going into the intricacies of the schooling system in Northern Ireland, there are a number of registered education bodies. A teacher fills in his or her part of the form and submits it to the registered teaching body, after which it comes to us. It could be an education and library board, the Department or the Council for Catholic Maintained Schools which are the relevant registered bodies. There are a number of registered and umbrella bodies. Some are statutory organisations but others can be voluntary organisations. In general terms, employers are the most common types of registered or umbrella bodies.

Dr. Andrew Bailey

One of the crucial aspects of the process concerns the checking of identity because the PSNI and Access Northern Ireland turn to the registered body to certify identity. Someone who can present himself or herself with a fictitious name will be clear on our system and we must try to prevent people from so doing. It is in the interests of those who have a history of sexual offending or child abuse to have a clear check. Consequently, such persons will try to manipulate their names, change dates of birth, manipulate middle names and surnames, etc. The checking of identity is crucial.

Deputy Brendan Howlin

I welcome the delegation and thank it for both the information provided in advance for members and the presentation. I wish to focus on two issues of which the committee is seized. One is the general issue of the exchange of information. Because of the free movement of people, particularly on the island of Ireland but also within these islands and the European Union, we obviously will try to create as robust a system as possible.

The other issue is the gathering of what we have classified as "soft" information — non-convictions. This is the most problematic area for us about which I will ask a few questions. From what Dr. Bailey has said, it seems Access Northern Ireland is freer than we would be in this jurisdiction, based on the legal advice available to this committee.

I will amplify a question asked by the Minister of State, Deputy Brendan Smith, about the statutory basis. Dr. Bailey referenced the Police Act 1997. I understood that Access Northern Ireland was created by statutory instrument as opposed to a specific piece of legislation. Is there legislation that sets out the codes under which it operates on a legal basis or is it done by statutory instrument under the Police Act?

How has the legal basis sat with the UK Human Rights Act? Is there any vetting of it in terms of either the UK Act or the Northern Ireland Human Rights Commission which would have observations to make on legislation, if not statutory instruments, because secondary legislation is often done so quickly and in such volumes that organisations do not have much chance to make observations on it?

Listening to Dr. Bailey, it seems that Access Northern Ireland has considerable discretionary power in terms of determining who should be on the list and what to do with that information. It has matrixes and so on. Ultimately, there is considerable discretion that arrives at somebody's desk. The consequences of its decisions are very serious for everybody concerned, whatever side of the argument one is on. They are very serious for the individual looking for a job whose reputation can be shredded or in allowing somebody access to children who should not have this access. It seems to impose a lot of responsibility for an individual. Is that the best way to proceed?

The Bichard report, which was mentioned by Dr. Bailey, contained 31 recommendations. Two of its central recommendations were that there should be a statutory code of practice in respect of the recording, collection, review, retention and deletion of information. Has such a statutory basis or code ever been devised?

In respect of the information Dr. Bailey gave on the creation of a centralised registration scheme, which was one of the key recommendations, did he say that such a centralised register exists? I think he referred to it as the flagging system. What sort of information is included in that? It seems that in the information provided by Dr. Bailey, there is a considerable amount of information that I would be very concerned would be flagged. This is "soft" information in terms of employment, the cautioning of people in certain employments and disciplinary action taken against a teacher or child care worker that might have resulted in a child coming to harm. As a former teacher, I can imagine a number of instances that would not indicate that the individual concerned was a potential child harmer yet could find him or herself on that kind of register.

I have many questions for Dr. Bailey. I have not reached the exchange of information element. I will confine myself to the nature of what is termed the "soft" information in Dr. Bailey's experience to date.

Dr. Andrew Bailey

The non-conviction information is mostly not information from human intelligence sources. It is accusations of assault from victims that do not go to court.

Deputy Brendan Howlin

Is that exchanged?

Dr. Andrew Bailey

Yes. It is exchanged after I go through this matrix. If it is relevant and I——

Deputy Brendan Howlin

Is Dr. Bailey talking about the veracity of it? This would concern me more than the level of harm it does.

Dr. Andrew Bailey

The veracity of it is a crucial part of it and I review the prosecution file. Most of my 26 years of service in the police in Northern Ireland has been in child protection and the investigation of sexual offences. One gets to be able to judge a case. The cases that are malicious are relatively easy to spot. There are cases that have not gone to court for various reasons on a criminal burden of proof. There is little doubt on a civil burden of proof that the person poses a real risk to children and vulnerable adults.

In respect of most of the cases we see that have not gone to court or where there has been a finding of not guilty because a lack of corroboration, some technicality where corroboration is not admissible, or where the victim cannot go through a contested trial against their uncle or father, it is relatively straightforward to judge the veracity. It is then a case of weighing up the risks involved because even if we are convinced that the person committed the offence, it is a question of how much risk they pose versus the damage it will do to their private life.

A considerable amount of responsibility is placed on me as the ACPO delegate. Some forces have a panel which would consist of a senior detective, a human rights lawyer and perhaps another senior police officer. Most forces tend to go with the chief constable's delegate, which is what I do in Northern Ireland.

In respect of the management of police information, the Home Secretary has issued what is called the management of police information, MoPI, code of practice which has some statutory basis in England and Wales. Chief constables are compelled to comply. That legislation does not apply to Northern Ireland but we have still complied with it. It will be quite a big project for the police to determine exactly what changes are required to manage police information properly both in terms of collection, grading of different bits of information, how we disseminate it and how we review the information and screen relevant information.

Deputy Howlin also mentioned the central register. In respect of the central register for vetting, a version of the IMPACT nominal index with those flags which contains about 13 data fields called the IPLX is used. We know date of birth, name, and type of offence, etc. IPLX stands for Interim Police Local Exchange. The IPLX database is available to the criminal records bureau, Access Northern Ireland and Disclosure Scotland. In the past, the criminal records bureau in England would have had a look at somebody's application and if he or she disclosed an address in Leicester or Greater Manchester, the criminal records bureau would have written to the relevant chief officer.

The criminal records bureau can now look at the address disclosed and check the person on the IPLX, which would give them an indication of which other forces have information. That is designed to address the Ian Huntley situation where somebody could be known to half a dozen police forces but these forces do not know that each of them has this information. The criminal records bureau and Access Northern Ireland will check that database, which will provide them with a list of police forces to ask about disclosing information. Does this answer most of the questions?

Chairman

There was a question about the setting up of the legislation.

Deputy Brendan Howlin

It was unclear. I understood that Access Northern Ireland was still working under statutory instrument. The original one was the Protection of Children and Vulnerable Adults (NI) Order 2003 but Dr. Bailey spoke about Part 5 of the Police Act. Is this an entire piece of legislation that refers to your organisation — I have not seen it — or is it enabling legislation that has created another statutory instrument?

Dr. Andrew Bailey

Does Mr. Clarke know whether it is a statutory instrument?

Mr. Tom Clarke

Part 5 of the Police Act, the main legislation in this regard, allows the Secretary of State to disclose criminal history information and puts a duty on Dr. Bailey to disclose information required by the certificate. It sets out the circumstances in which certain types of information can be released, to whom we can release it and in which formats. Our secondary legislation allows Access Northern Ireland to operate — for example, it incorporates our forms and so on — but Part 5 is the key legislation that allows us to send out criminal history information. The Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 is different in that it identifies people in particular positions who must be checked.

Dr. Andrew Bailey

When the new legislation on barring schemes is introduced, some people will be required to register, but a wider group of people will be required to undergo criminal record checks irrespective of whether they are in barred professions.

Deputy Michael Noonan

Are Dr. Bailey's decisions subject to appeal and judicial review?

Dr. Andrew Bailey

Yes, they are both subject to appeal. However, we call it something else. What is the terminology?

Mr. Brian Downey

Is it not a panel?

Dr. Andrew Bailey

If someone disagrees with my decision, it is a——

Mr. Brian Downey

A dispute process.

Dr. Andrew Bailey

There is a dispute process in the quality assurance framework, but I am ultimately accountable to the law through judicial review.

When we disclose information to an employer via Access Northern Ireland, we are not making employment decisions. The legal advice we have received is that the first line of attack for a prospective applicant is the employer, who might ask the PSNI why certain information was disclosed. If we disclose something with which the applicant disagrees, we will review it. Sometimes we alter our comments slightly. Recently I stated that a man's case had been dismissed, but he disputed this on the grounds that his case, rather than being dismissed, involved a number of failed trials due to jury problems. The judge directed the jury to find the person not guilty. I corrected my statement to "not guilty" rather than "dismissed".

Mr. Tom Clarke

If I issue a disclosure certificate and the individual believes it is someone else's record, he or she can raise a dispute with us and we will recheck the matter if appropriate. If we have incorrect information, such as a date of birth, we have searched the wrong criminal record and will issue a new disclosure certificate. If it was a question of non-conviction information, we would refer it to the PSNI.

Senator Maria Corrigan

I have a question on the appeal. What right has the individual to apply for all checks rather than just the basic check? Do people have a right to know in advance what information will be disclosed? If information is disclosed to an employer, is it automatically disclosed to the individual or is it for the employer to inform the individual?

Questions on the independent safeguards commission to be established have been answered. Is part of the commission's role to ensure ongoing checks so that, if someone is in situ, automatic rechecks are conducted three or four years down the line? If so, what is the proposed time period?

People with intellectual disabilities, developmental delays or mental health issues were mentioned, but are the elderly included in the definition of vulnerable adults?

Thanks to one of the answers provided, I have a better sense of what types of soft information are covered by non-conviction information. I will outline three scenarios. In the first, an allegation made by someone in an employment context is investigated, reported to the health authorities and found to have substance, as a result of which there is a disciplinary sanction. The person might lose his or her job. Would this information, which would be passed to our guests, be deemed soft or non-conviction information?

Dr. Andrew Bailey

An allegation of what?

Senator Maria Corrigan

Physical or sexual abuse.

Dr. Andrew Bailey

Yes, it would be deemed soft or non-conviction information.

Senator Maria Corrigan

In the second, a person's children are taken into care by the courts through the civil rather than the criminal system. The person is looking for work in an environment where there are vulnerable adults or children. Is this non-conviction information to be disclosed?

Dr. Andrew Bailey

It might not get disclosed, but it is non-conviction information.

Senator Maria Corrigan

The redress board is an inquiry into old allegations. Our guests stated that reasonably current information is disclosed. What timeframe is set? If the redress board made a finding to the effect that someone was entitled to compensation and the person against whom his or her allegations were made was applying for a position with our guests——

Dr. Andrew Bailey

There is no set time limit. The older the allegations, the lesser the risk the person will be judged to pose if he or she has not reoffended. If the allegation is 30 years old and the person has not since come to the notice of the police or the social services, we might take the view that the risk posed does not outweigh his or her right to privacy even if we believe that there was some evidence of his or her being guilty of some kind of offence. However, it would be a relevant issue up for consideration.

Senator Maria Corrigan

If a non-national or someone with addresses outside the EU applied or an employer made an application on his or her behalf, would our guests follow the matter up with the relevant police force?

Mr. Tom Clarke

Everything disclosed to Access Northern Ireland by any police force is disclosed to the applicant and the registered body. There may be certain circumstances in which the police may disclose other information to the employer, but everything disclosed to us goes on the disclosure certificate. The applicant and the registered body will be given the same information.

Regarding the independent safeguarding authority, the Senator asked about ongoing checks. The system will be one of continual monitoring rather than one in which records would be reviewed after a particular period. If anything occurs that makes a person unsuitable to work with children or vulnerable adults, it will be noted by the authority which will make a decision whether the person should be barred or removed from the scheme membership.

Senator Maria Corrigan

If the decision that the person should be barred or removed is made, is his or her employer notified automatically?

Mr. Tom Clarke

Yes.

Senator Maria Corrigan

The decision, which is made by a single person, is a significant one. Is there any value in the suggestion that two people should make it? There is a double lock and it is not a case of one person's judgment call because of the consequences. I am interested in the flag system and its use for vetting and police investigations so that if a criminal act is investigated and the police come across a person of interest the police can access the system and contact the corresponding police force if they see a flag. It is the same in vetting, whereby the police force can be contacted directly if a flag comes up.

Dr. Andrew Bailey

It is Access Northern Ireland or the Criminal Records Bureau that makes contact. We have more than one person as a decision maker and some forces use a panel. That does not alter the fact that the legal duty is on the chief officer or the chief officer delegate.

Senator Maria Corrigan

Who monitors the decision?

Dr. Andrew Bailey

It is monitored under the quality assurance framework, a product we use. I review a percentage of Inspector Brian Downey's work and the assistant chief constable reviews a percentage of my work. Mainly we are accountable to law.

Senator Corrigan referred to the elderly, who are included in vulnerable adults. Many of our cases are of people applying for jobs in nursing homes. If they have convictions for child abuse or physical assault it is straightforward but if they have convictions for theft or dishonesty offences, we disclose them because, like a pharmacist or a general practitioner, they will be placed in a position of trust in terms of personal care and hygiene but also in respect of access to the pension books or the state benefits of vulnerable adults. Many of our cases relate to people applying for jobs with the elderly and we take it seriously.

Senator Maria Corrigan

Within the health, education and care services in Northern Ireland does mandatory reporting operate?

Dr. Andrew Bailey

Yes, there is a joint protocol, joint investigation and cross-referral for both child protection and vulnerable adults.

Senator Maria Corrigan

Is it mandatory reporting, whereby when an allegation is made it must be passed on?

Dr. Andrew Bailey

It is not mandatory on a legal basis but all parties have signed up to a protocol whereby we use cross-referral. That is not to say that we jointly investigate all cases but with cross-referral we decide who should investigate. That can be a single agency investigation by the police, the trust or the registration and inspection unit, or a joint investigation. In the case of abuse at a care home it would be a joint investigation between the police and the registration and inspection unit.

Senator Alex White

This session is enormously helpful to the committee in terms of the practical application and implementation of the rules in place in Northern Ireland. The delegation displays a high level of certainty on the legal underpinning. The Minister of State asked whether the delegation was happier that there was a clear statutory underpinning of its functions. Clearly, the statutory underpinning is there and the delegation seems more confident.

A colleague referred to judicial review applications. The delegation operates in the context of the UK Human Rights Act and all of the changes that occurred and is confident of the judgment it exercises. This is a big ask, because it is not a finding of guilt but it is a judgment on what information should be passed on.

I will not burden the delegation with the constitutional question. The Garda Síochána has made it clear it would prefer a statutory basis for the work it carries out. There is a question of going further and having a constitutional amendment. The delegation is satisfied in the legal and constitutional context in which it operates that it is well protected. It has comfort in that. I have other questions also.

Dr. Andrew Bailey

The lack of a specific statutory basis previously did not make us more cautious but, if a case got to judicial review, there would be an argument. We think there are three tests, under the UK Human Rights Act and other legislation: whether it is in accordance with the law, proportionate and reasonable. Without a specific legal basis it might fail on the first criterion although our advice was that the general duty of the police to prevent and detect crime would suffice.

We have not yet had a judicial review. If I followed the quality assurance framework and the ACPO national guidance on the subject and I have not been malicious, having given proper consideration and weighed the risk the person poses against the risk to the person's private life, I am confident because, with my background, I know about child protection and sexual offences. That is not to say that the decision may not be overturned at judicial review.

Mr. Tom Clarke

This is the 1997 Act so it has been in existence for quite some time. Human rights challengers have had ample time to challenge the basis of the legislation.

Senator Alex White

That is interesting. The delegation referred to an ability to recognise malicious complaints and to judge issues. The words used were "relatively straightforward". Clearly the delegation has much experience in the area but it is helpful for us to hear from those who exercise this judgment that it can be done in such an environment without concern.

Dr. Andrew Bailey

It is relatively straightforward in most cases but there are some very difficult cases, which tend to be old cases or conflict related cases, where someone has been accused of a paramilitary murder 25 years ago but has been clear ever since. It is difficult to decide if the person currently poses a risk to children, young people or vulnerable adults.

Senator Alex White

Dr. Bailey indicated that the scope of information allowed is quite broad and extends to allegation of misconduct acted upon by employers. What constitutes something that is acted upon? We can posit an example where a complaint is made and the employer invites the person in to ask if there is any truth in it. Is that something that is acted upon?

The delegation referred to the system processing a broad range of information, from convictions to allegations of misconduct in the course of employment. I do not refer just to malicious allegations but when is an allegation an allegation? Must it be committed to writing, formally communicated to the employer or can it be softer than that?

Dr. Andrew Bailey

It is not particularly an issue of whether it is acted on. If the police become aware of information through a professional body or the health and social services, whether the employer acted upon it is largely irrelevant. That is not what we judge. We judge the veracity of the complaint, whether there is corroboration and whether the person poses a risk. Whether the employer acted upon it is not something we are particularly worried about.

Senator Alex White

It must require a level of further delving and investigation.

Dr. Andrew Bailey

Yes. In most of the cases I am examining there is a full police prosecution file where a joint investigation has taken place between the police and social services. They contain detailed statements from the victim, an account under caution from the suspect, witness statements and clinical reports. In 99% of the cases I examine there is an ample supply of background information.

Senator Alex White

I am interested in this. Dr. Bailey stated this occurs in 99% of cases. I understood that by "soft" information we mean information which is far short of a police file. The committee would agree that if an investigation has reached a certain stage, even a relatively early stage, the information is moving on a continuum from soft to hard. While there has not been a conviction, there is a file, and obviously a difference exists between the two. What we, the child protection committee, and others are more concerned about is information which has not reached any level of development but people have a suspicion about an individual.

Dr. Andrew Bailey

Unfortunately, very few of those cases get notified to the police. We often appeal to people that if they have concerns about members of staff or care givers that they report it to health and social services or the police. In most of the cases I examine, someone has come forward to make an allegation. It is this type of evidence and non-conviction information which is involved and not the more vague information Senator White is discussing. If I had such a case in front of me, the fact that concerns were raised by co-workers without corroboration would have an important bearing. It would be much more difficult for me to state the risks to children or vulnerable adults had been outweighed.

Senator Alex White

My last question is a short one on the matrix Dr. Bailey showed us. It shows a risk to a vulnerable group with "A", "B" and "C" and on the other side is the question of the likely disruption to the private life of the person concerned. I can understand how Dr. Bailey distinguishes between severe, moderate and quantifiable risks to a vulnerable group. One can see how this can be determined with professional guidance.

On the other side of the equation, how is the level of disruption to somebody's private life distinguished? Surely it can be stated that information once disclosed has a disruptive effect. I do not understand how a differential level of disruption to somebody's private life can exist. It is either disruptive or it is not.

Dr. Andrew Bailey

No. For example, if disclosure means an individual who had been teaching for many years will never work in teaching or any similar profession in the future, it is a severe disruption to his or her private life. At the other end of the scale, it will cause less disruption to somebody in full-time employment and not in contact with children or vulnerable adults, such as an engineer, who applies to be a part-time voluntary football coach. The only aspect of his or her life affected is that he or she will not be able to coach football any more.

Senator Alex White

I understand.

Dr. Andrew Bailey

Generally, if a teacher, nurse or social worker is involved in a sexual assault or child abuse case, it will cause either moderate or severe disruption.

Senator Alex White

I thank Dr. Bailey.

Chairman

I am conscious that our three visitors are catching a train at 8 p.m. and must leave here at 7.30 p.m.

Deputy Caoimhghín Ó Caoláin

I extend a fáilte to the panel. In his outline of the relationship between the newly-established Access NI and the PSNI, Mr. Clarke did not refer to the role, if any, of the DHSS and DENI which were previously directly involved in the compilation of their own list systems. Do they have a function since the advent of Access NI on 1 April? Am I right to presume that all of the respective databases they compiled are part of the combined position from which Access NI works?

The section on what is a registered body in the fold-over quick guide states that employers wishing to use Access NI's services will need to register and become a registered body. Does a statutory responsibility exist with regard to the obvious employers within the system dealing directly with children? This is an option presented in this little leaflet. The phrase it uses is "wishing to". Are areas directly involved in the provision of care services and supports of children obliged in law to operate through Access NI? In what areas is it optional that people might take this course of action?

With regard to the change since 1 April, which the two PSNI officers present have been party to bringing about, unlike what existed previously in the North where the PSNI, the DHSS and DENI were involved, here the Garda has sole responsibility. Without predetermining what we would like to see here, will the PSNI officers give us a quick sense of the transition and the current arrangement? Is the PSNI party to it on a willing basis? Is it an advance on the situation which was maintained previously? I do not ask them to be prescriptive to the system here. We would like to hear what they have to state and perhaps regurgitate it at a further appropriate time.

Mr. Tom Clarke

In answer to Deputy Ó Caoláin's first question on the roles of the other Departments, they remain as they have done. The slight difference is that people will not bring their application forms to the Department of Health, Social Services and Public Safety for onward transmission to the police. In terms of the disqualification lists, that is the lists of people unsuitable to work with children and vulnerable adults, the Departments of Education and Health, Social Services and Public Safety still maintain those lists. We have full access to them and to such lists from throughout the United Kingdom. We are able to search against those lists to see whether the applicant is on them. If he or she is, we would notify not only the employer but also the police because it is an offence to apply for a post when one is on a barred list.

Deputy Ó Caoláin also asked about registered bodies and whether it is optional for employers. It is optional in that employers can choose to register with us. If they want enhanced disclosures they must register with us. There is no other way they can do it. The Deputy is correct that the legislation states we can only relay this information to a registered body. Some people may wish to register with us for standard disclosures.

An option can exist for employers with regard to registering. Generally speaking, they always have the option because it is not a requirement under Part 5 of the Act. They can be within certain positions, particularly with regard to the protection of children and vulnerable adults order, whereby people must be cleared before they can work with children and vulnerable adults. This means de facto that they must register with Access NI. The answer to the question is that it is optional but if they want the information they must register with us because it is the only way they can obtain it.

Deputy Caoimhghín Ó Caoláin

Will Mr. Clarke clarify that the DHSS and DENI will retain their respective list systems which are already in situ? Are they continuing to operate those independently of Access NI?

Mr. Tom Clarke

Yes they continue to operate those. In due course, the legislation will change again and it will be the independent safeguarding authority which will have the barred lists. It will be the ultimate owners of those lists but the information will come from local sources from right across the United Kingdom.

Registered bodies can also be umbrella bodies which act on behalf of a number of organisations. Some organisations would be too small to register with us so they would avail of the service through an umbrella organisation. Some umbrella bodies set themselves up solely for that purpose. There are a number of commercial umbrella bodies in operation. However, they do not make the final employment decision — it still remains with the employer.

Mr. Brian Downey

Deputy Ó Caoláin spoke about the transition between PSNI, the public safety teams and the Department of Education in Northern Ireland and our business transferring across to Access NI. He asked if we feel that is still robust and the answer is "Yes". The enhanced disclosures are at the cutting edge of what we are trying to do. This deals with people who are on the lists, those who are potentially going on to the lists and those who are applying for posts involving working with children or vulnerable adults. The enhanced disclosure aspect of the work, which we feel must be covered, goes straight back to the PSNI. Access NI will conduct all the ancillary checks before they come to us for the enhanced part of the disclosure.

In terms of the robustness, we have vetted the registered bodies for Access NI and are confident the people who are registered to submit applications through Access NI have been thoroughly vetted and are of firm standing.

Deputy Olwyn Enright

Barnardos and the ISPCC voiced concerns in recent years until the establishment of the Garda vetting unit. I ask the representatives to outline the improvements that have taken place since that unit was set up in terms of assisting with cross-Border difficulties with individuals. I also ask them to outline the problems, if any, which stem from the fact that we do not officially deal with soft information in this jurisdiction. I very much support the work of Access NI and the PSNI and would like to see a similar system in operation here. We must deal with the question of whether this issue will be included in the forthcoming referendum and members are divided on that question.

While I support the concept of vetting, fears have been expressed to me about this whole area and my party raised this issue in the Dáil as far back as 2003. Some people were afraid the system could be abused and the witnesses have dealt with that issue to some degree. Abuse can take the form of an individual making a false allegation, which has been dealt with here. However, abuse can also take place within an organisation, if somebody wants to be malicious. Within the 700 organisations which have the power to obtain the information, is the information made available to one or more individuals? Can the information, for example, be discussed by the board of directors or at committee level?

Is there a risk that the piece of paper stating that an individual does not pose a risk to a child or vulnerable adult can become a type of visa or access point, enabling him or her to work with such people? In the context of the Ian Huntley case, there was a good vetting system in operation in the United Kingdom at that time but he still managed to slip through the net. The fact he did so indicated the system was not as good as it could be. I am aware that the system in Northern Ireland was more thorough than the one in operation in England at that time. What changes have been made in the United Kingdom on foot of that case and have those changes been introduced in Northern Ireland? While we do not have to reinvent the wheel here, we will almost have to adopt an entire system from elsewhere if we are to deal with soft information in this country. What lessons were learnt from the Huntley case and what strengthening of the system took place in its wake?

Arbitration was referred to in the presentation. Is there a final right of appeal to court? I imagine we would have to have something like that here, if a person's name is going to be included on a list.

Chairman

I am conscious that the gentlemen should be getting to their feet now, but perhaps they could give a reply which encapsulates most of the points raised.

Deputy Olwyn Enright

I do not mind if the Chairman wishes to allow the other members to ask questions first.

Chairman

Yes, because the witnesses must leave very shortly. I ask Deputy Woods to put his points to them.

Deputy Michael Woods

I just want to be clear that witnesses said that clearance is provided within two to three weeks. Is that correct? Do witnesses have any statistics on the risks identified, failures to identify, spent cases that have been approved and so forth? How long does it take for people with criminal convictions to be approved? Obviously, it would be very difficult with a paedophile but what of those with other convictions? In terms of soft information, how long is it likely to be before people are cleared? Is information still held, verbally or unofficially, by the police after the vetting procedure is complete. That currently happens here.

Chairman

Trains do not wait for committees, so perhaps the witnesses could give written responses to the questions posed by Deputies Enright and Woods and those which will be posed by Deputy Power.

Deputy Peter Power

I will be brief because Senator Alex White asked all the questions I had intended to ask, bar one. When it comes to the decision-making stage as to what information is released and to whom, a two-dimensional matrix is applied. The quality of the information is surely another dimension to that matrix, although it is not referred to here. Obviously if a person is a convicted paedophile, that could have devastating consequences for a child and is disclosable. However, what if it is merely an allegation and the person has never appeared on any police file? I ask the witnesses to elaborate on that point.

Witnesses also referred to the fact the information they use must be credible, clear and capable of being substantiated if challenged. Have decisions ever been challenged and if so, how many and what was the outcome? To what level must the information be substantiated? Obviously, if a person has no convictions, then an allegation was not substantiated beyond all reasonable doubt. Does the balance of probabilities apply or does it depend on the two dimensions of the matrix?

Dr. Andrew Bailey

Certainly the matrix is useful only when we get past the relevancy test, where we are examining if an allegation can be corroborated. If we get a case that we are inclined to disclose on because we think that, on the balance of probabilities, the person committed an alleged act and poses a risk, then we go into the matrix. Even if we are convinced, on the balance of probabilities, that a person is a risk, we must carry out a human rights test on the risk that he or she poses versus the threat to his or her private life. The human rights matrix comes into play at the very end of the process.

Deputy Peter Power

Dr. Bailey mentioned that 99% of cases involve a review of a police file. That implies that only in 1% of cases in which information is disclosed does that information come from third party sources, for example, social services, child care services or the health system.

Dr. Andrew Bailey

It is slightly more complicated than that because in the cases where there are full prosecution files or supporting documents, they could have resulted from a referral from social services, the health services, the NSPCC and so forth.

Chairman

Deputies Woods and Enright also asked questions. Can the delegates answer them briefly?

Dr. Andrew Bailey

I can take the question asked by Deputy Woods concerning the period of time before somebody is cleared. There is no set limit for a conviction or allegation. The length of time somebody has lived with a clear record or without coming to the attention of the State might be an indication he or she poses a reduced risk. We might have to make a direct link between an offence the individual committed 25 years ago and his or her behaviour after being employed as, for example, a social worker or student nurse. There is no cut-off line but, where a person has not subsequently come to the attention of the authorities, old cases indicate he or she is either a lower risk or has been canny enough to avoid being caught.

Mr. Tom Clarke

Deputy Enright asked about how we safeguard against abuse of the information we provide to organisations and whether a piece of paper means that an individual has been cleared. Any information we release, and anybody who receives it, is subject to the Data Protection Act. The Northern Ireland Information Commissioner would be very unhappy if information was being used inappropriately at the local level. Access Northern Ireland has a code of practice which governs issues such as how information should be stored and who should see it. Once the information has been used for its stated purpose, which in many cases is simply employment, it should be destroyed rather than photocopied or held on file. As part of our work, we carry out audits of organisations to ensure they are complying with the code of practice and are not abusing the personal and sensitive information we supply.

We make it clear that the checks we conduct are a snapshot of a period of time. The disclosure certificate is only valid until it passes through our door. We do not know what happens the next day. In due course, the establishment of the independent safeguarding authority will change that arrangement because it will allow for continuous monitoring. Information will be gathered from all sources and a recommendation could be made to bar an individual from scheme membership. A number of statutory organisations will simply not accept people with old disclosure certificates for regulated carer positions. Legislation provides that disclosure checks are valid for a period of 12 months in the case of employment and nursing agencies but that is the exception rather than the rule. The refusal by many employers to entertain old disclosure certificates also applied under the system which existed prior to 1 April. They would always seek a fresh check before employing the individual.

Chairman

I thank the delegates. They have been wonderfully informative and we appreciate their outspoken and interesting contributions. We wish them a safe journey home.

I remind members that their parties' policy papers are to be submitted by 30 April. We discussed this at our last meeting. Each political party grouping is in a position to present policy papers on the main issues as discussed at the last meeting.

Senator Alex White

I understand that was confined to the strict liability aspect. It did not pertain to all the criteria.

Chairman

I do not think so. I thank members for staying the pace. The delegates were really good and we have a great deal to learn.

The joint committee went into private session at 7.35 p.m. and adjourned at 7.40 p.m. sine die.