Dear Madam,

Response to Regulation 28 Report relating to the inquest touching upon the death of Jane Anne Jowers

Thank you for your letter dated 23 September, enclosing a Regulation 28 Report relating to the inquest touching upon the death of Jane Anne Jowers.

This response is provided to your below concern recorded in the Regulation 28 report:

“The evidence at the inquest revealed that there is no statutory procedure for checks to be undertaken for criminal convictions outside of the UK. The absence of statutory international checks may result in unsuitable persons with prior convictions working with vulnerable adults and children”.

The Disclosure and Barring Service (DBS) was established under the Protection of Freedoms Act, 2012 and provides information to help employers in England and Wales make informed safer recruitment decisions, especially those involving children or

vulnerable adults. It does so by processing and issuing DBS certificates, also known as DBS checks, for employment in England, Wales, the Channel Islands and the Isle of Man. Primarily, the roles normally involve working with children, vulnerable adults, or both.

The types of DBS check are as follows:
• a Basic certificate issued pursuant to Section 112 Police Act 1997, which shows unspent convictions and conditional cautions
• a Standard certificate issued pursuant to Section 113A Police Act 1997, which shows spent and unspent convictions, cautions, reprimands and final warnings
• an Enhanced certificate issued pursuant to Section 113B Police Act 1997, which shows the same as a Standard check plus any information held by local police forces that is considered relevant to the role and the Chief Officer has made a decision that it ought to be disclosed
• an Enhanced check with a check of the barred lists issued pursuant to Section 113B, s113BA and s113BB Police Act 1997, which shows the same as an Enhanced check plus whether the applicant is on the adults’ barred list, the children’s barred list or both The Police Act, 1997 (the Act) sets out the data sources that may be accessed by the DBS as part of the Disclosure service. It is understood that a certificate issued under Section 113B of the Act, is the relevant certificate that was issued in this matter. Section 113B of the Act provides, as far as is relevant to data sources:

(3) An enhanced criminal record certificate is a certificate which— (a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or (b) states that there is no such matter or information.

(4) Before issuing an enhanced criminal record certificate [DBS] must request [any relevant chief officer] force to provide any information which […] — (a) [the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and (b) [in the chief officer's opinion, ought to be included in the certificate. [

(4A) In exercising functions under subsection (4) a relevant chief officer must have regard to any guidance for the time being published by the Secretary of State. ] (7) [DBS] may treat an application under this section as an application under section 113A if in [its] opinion the certificate is not required for a purpose prescribed under subsection (2).

(9) In this section— “central records” , “exempted question” , and “relevant matter” have the same meaning as in section 113A; [ “relevant chief officer” means any chief officer of a police force who is identified by [DBS] for the purposes of making a request under subsection (4) . ] (10) For the purposes of this section references to a police force include any of the following— [ (a) the Royal Navy Police; ] (c) the Royal Military Police; (d) the Royal Air Force Police; (e) the Ministry of Defence Police; [...] (h) the British Transport Police; (i) the Civil Nuclear Constabulary; (j) the States of Jersey Police Force; (k) the salaried police force of the Island of Guernsey; (l) the Isle of Man Constabulary; (m) a body with functions in any country or territory outside the British Islands which correspond to those of a police force in any part of the United Kingdom, and any reference to the chief officer of a police force includes the person responsible for the direction of a body mentioned in this subsection.

(11) For the purposes of this section each of the following must be treated as if it were a police force—

(a) the Commissioners for Her Majesty's Revenue and Customs (and for this purpose a reference to the chief officer of a police force must be taken to be a reference to any one of the Commissioners); (b) the [National Crime Agency] (and for this purpose a reference to the chief officer of a police force must be taken to be a reference to the Director General of the Agency); (c) such other department or body as is prescribed (and regulations may prescribe in relation to the department or body the person to whom a reference to the chief officer is to be taken to be). [ In accordance with the above function DBS relies upon information held in Central Records which are defined within s113A of the Act as:

6) In this section— “central records” means such records of convictions and cautions held for the use of police forces generally as may be prescribed;

The type of records to be disclosed in a certificate issued under s113B (3) (a) above, are prescribed within Regulation 9 of the Police Act 1997 (Criminal Records) Regulations
2002. Regulation 9 provides;

Information in any form relating to convictions, cautions, reprimands and warnings on a names database held by the [Secretary of State] for the use of constables is prescribed as “central records” for the purposes of [sections 112(3) and 113A(6) of the Police Act 1997]4 (including [section 113A(6)]5 as applied by sections 114(3)6 and 116(3)7). “

The “names database” referred to above is the Police National Computer (“PNC”). The DBS is, therefore, limited to disclosing information under the provisions of s113B(3)(a) of the Act to that information held within PNC. In some circumstances this may contain information from overseas agencies.

The only remaining method by which overseas information would be included in certificates issued by the DBS under s113B of the Act is if the information is disclosed to DBS by the police under the additional requirements of s113B(4) of the Act (above). In order to identify if a police force holds information of a type that may be disclosed under section 113B(4) of the Act, the DBS refers the application to relevant police forces to

confirm the existence of any relevant criminality information held at local level, which could include overseas information.

There is no other international system available to DBS to identify overseas convictions. The DBS is not, therefore, aware of overseas criminality information unless it is passed from international law enforcement agencies to UK forces and recorded on their systems. DBS guidance for employers, therefore, sets out that DBS does not access oversees criminal records.

The DBS in unable to establish a reliable international data flow guaranteeing the provision of information to the level disclosed in England and Wales. The DBS does not have the agreement and cooperation of each country and in some cases individual law enforcement agencies, where policing is not carried out at a national level, that would be necessary to enable this. There does however exist provision enabling employers to request further evidence of good conduct for those applicants who have lived outside of the UK directly from the country concerned.

Advice in this regard and reference to the appropriate Home Office guidance is published on the DBS website and is attached as Appendix A. The Home Office published guidance provides information as to how to apply to a number of countries, including the Republic of Ireland, for an overseas criminal records check. Home Office guidance is attached as Appendix B.

The decision to carry out an overseas check is made by the employer and forms part of their risk assessment to be used in conjunction with their other pre-employment checks. DBS guidance states that the DBS check is only one component of an employer’s recruitment practices and the employer should decide on whether to obtain an overseas check on applicants who have lived or worked abroad, where there is not a statutory requirement to do so.

In conclusion, under the existing statutory arrangements, there is provision to disclose criminality information from overseas on DBS certificates, but DBS has not considered the appropriateness or not of further statutory requirements and no further action is proposed. Consideration of further statutory obligations is a matter for the Home Office and Parliament. However, as I have explained above, there are considerable practicable limitations in gaining access to and sharing such information.

I hope that this response provides you with assurance that measures are in place to support employers to make safe recruitment decisions.