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NAHT PUBLISHES THE SEX OFFENDERS ACT PROTOCOL AGREED WITH ACPO

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The National Association of Head Teachers today publishes a Protocol Agreement on the Sex Offenders Act 1997 agreed...
The National Association of Head Teachers today publishes a Protocol Agreement on the Sex Offenders Act 1997 agreed with the Association of Chief Police Officers.

A copy of the Protocol is attached. Key points are:

1. There is a public expectation which is shared by ministers that the process of assessing and managing the risk posed by sex offenders should apply to all sex offenders and therefore the police will continue to assess those persons who pose a risk, whether registered or not, so as to minimise the dangers to children and other vulnerable people.

2. Disclosure to third parties, (including schools), of personal information about individual offenders should be the exceptions to a general policy of confidentiality and each decision on whether or not to disclose will have to be justified on the basis of the likelihood of the harm which it is judged might otherwise result.

3. The assessment process carried out by the police should take account of: The nature and pattern of previous offending; compliance with previous sentences or court orders; the probability that a further offence will be committed; the harm such behaviour would cause; any predatory behaviour which may indicate a likelihood that he will re-offend; the potential objects of the harm (and whether they are children or otherwise specially vulnerable); the potential consequences of disclosure to the offender and his family and the potential consequences of disclosure in the wider context of law and order.

4. There will be occasions when information held by the police indicates that the dangers posed by an offender necessitates the police disclosing certain information to the head teacher of the school or, in non urgent cases, the local education authority (which may included the Education Welfare Service). The extent of any disclosure will be limited and confidential and will be made in person. The disclosure should be supported in writing.

5. Before making the disclosure, the police should be prepared to give advice and guidance on what action is required to be taken by the person receiving that information. Whilst some responsibility will be transferred to the third party, the police must take the lead in providing guidance on precisely how the third party should respond to the information to further the protection of a specific person or people generally and on restricting the use and preventing undesirable spreading of the information disclosed.

6. Such discussions should make clear to the individual concerned whether the information is to be further disclosed or not. Such judgements can only be made on a case by case basis. It may be necessary to require an undertaking of confidentiality in certain circumstances.

7. Schools who are in receipt of information from the police service are required to develop a risk management strategy in collaboration with the police for those particular circumstances. However, no action should be taken which is outside the conditions agreed with the police and no disclosure should be made to any additional party without the agreement of the identified police officer having responsibility for that particular case.

David Hart, general secretary NAHT comments:

'All reasonable steps must be taken to reduce the risk to children posed by sex offenders. If the police decide that a head needs to know about an individual offender, who poses a danger, in order to prevent harm to pupils, considerable responsibility is placed on the head's shoulders. This is why it is essential that the police give advice on the action which needs to be taken to protect the pupil or pupils concerned. It is crucial that the head knows whether he/she is required to keep the information confidential or whether it can be passed onto third parties, such as school staff. By following police guidance heads can make a valuable contribution to removing the risk of harm, to their pupils, posed by individual sex offenders.'

PROTOCOL REGARDING SEX OFFENDERS ACT 1997

The information set out below is the result of discussions held between the NAHT and the Association of Chief Police Officers [ACPO] during recent months.

This agreement has the full backing of the NAHT and ACPO and it is hoped that the protocol will assist you in arriving at supportive procedures locally which will help to deal with this important and very concerning topic.

INTRODUCTION

The Sex Offenders Act 1997 came into effect on 1 September 1997. The Home Office issued Circular 39/1997 to advise on the operation of the Act. There is a public expectation which is shared by ministers that the process of assessing and managing the risk posed by sex offenders should apply to all sex offenders and therefore the police will continue to assess those persons who pose a risk, whether registered or not, so as to minimise the dangers to children and other vulnerable people. The Police Service has been assigned lead agency status with regard to the Sex Offenders Act and for the assessment and management of risk posed by sex offenders in the community. In order to achieve this it will be necessary for the police to share information and work closely with other agencies, including schools and LEAs.

DISCLOSURE DECISIONS

Legal Context

The legal context within which disclosure decisions have to be taken is continually evolving. The courts are the ultimate authority on the circumstance of what and how information can be disclosed by the police. There are various areas of the law which are relevant to disclosure decisions, including (a) the common law duty of care on the police in the way they exercise their functions; (b) the common law duty of confidence; (c) the law on data protection; (d) the European Convention on Human Rights, especially the right to the protection of private and family life; (e) the law on defamation and (f) the Children Act 1989 which provides a framework for the care and protection of children.

The case of R -v- Chief Constable of North Wales Police and Others ex parte Thorpe and Another has considered the procedures the police should adopt when deciding whether or not to disclose information about a sex offender. The Master of the Rolls, giving the judgement of the court identified a number of areas that must be considered by the police: The police could not ignore the position of the offender; consideration had to be given as to the threat posed by the media or by harassment of members of the community to the offender; they had to take into account the effects of driving the offender underground; they had to consider that suitable supervision, appropriate treatment, support and housing were provided and, most importantly, that the steps would provide for adequate protection for vulnerable persons. The court recognised that this was an extremely difficult and sensitive issue for the police.

Duty of Confidentiality

Disclosure to third parties, (including schools), of personal information about individual offenders should be the exceptions to a general policy of confidentiality and each decision on whether or not to disclose will have to be justified on the basis of the likelihood of the harm which it is judged might otherwise result. Disclosure should be seen as part of an overall plan for managing the risk posed by a potential offender and the need to protect an individual child, a group of children or other vulnerable persons. The issues involved are complex and it is important that the right steps are taken at the right time and can subsequently be justified if required.

Management Plans

The assessment process carried out by the police should take account of: The nature and pattern of previous offending; compliance with previous sentences or court orders; the probability that a further offence will be committed; the harm such behaviour would cause; any predatory behaviour which may indicate a likelihood that he will re-offend; the potential objects of the harm (and whether they are children or otherwise specially vulnerable); the potential consequences of disclosure to the offender and his family and the potential consequences of disclosure in the wider context of law and order.

Where a decision to disclose is taken by the police, what information is to be disclosed should be carefully considered as part of the risk management process and reflect who will be the person or persons receiving that information. The nature of the information disclosed and the extent of its distribution should be decided on a case by case basis. It will remain a matter for the professional judgement of the police, consulting as far as possible with other interested agencies, but always ensuring that every effort is made to inform other agencies of a decision to disclose before it takes place.

There will be occasions when information held by the police indicates that the dangers posed by an offender necessitates the police disclosing certain information to the head teacher of the school or, in non urgent cases, the local education authority (which may included the Education Welfare Service). The extent of any disclosure will be limited and confidential and will be made in person. The disclosure should be supported in writing.

Police Advice to Schools

Before making the disclosure, the police should be prepared to give advice and guidance on what action is required to be taken by the person receiving that information. Whilst some responsibility will be transferred to the third party, the police must take the lead in providing guidance on precisely how the third party should respond to the information to further the protection of a specific person or people generally and on restricting the use and preventing undesirable spreading of the information disclosed. It is essential that the police identify a contact person for the third party to provide further guidance and advice should that be required.

The police will ensure there is clarity about the management of the information after disclosure. Such discussions should make clear to the individual concerned whether the information is to be further disclosed or not. Such judgements can only be made on a case by case basis. It may be necessary to require an undertaking of confidentiality in certain circumstances. The responsibility for risk assessments of sex offenders remains the responsibility of the Police Service and is not transferable to other agencies. Schools who are in receipt of information from the Police Service are required to develop a risk management strategy in collaboration with the police for those particular circumstances. However, no action should be taken which is outside the conditions agreed with the police and no disclosure should be made to any additional party without the agreement of the identified police officer having responsibility for that particular case.

Inter Agency Co-operation

The Police Service is committed to working with other agencies to make a safer environment, particularly for children and other vulnerable people. The process of assessment and management of risk is a significant contribution to that safety. As part of existing arrangements and the implementation of new practices, it is important that LEA areas work directly with police forces to develop an understanding of how information can be exchanged in an informed and thoughtful process. The establishment of protocols at area level may assist in this process, however, these must recognise the lead responsibility of the Police Service and that decisions must be made on a case by case basis.

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