1 For the purposes of this guidance, information sharing is the sharing of information between all agencies involved in MAPPA. Disclosure, on the other hand, is the sharing of specific information about a MAPPA offender with a third party (not involved in MAPPA) for the purposes of protecting the public.
2 Examples include where there are child protection concerns or inappropriate employment, where the sex offender may have access to children or vulnerable people. The disclosure of an individual's status as a sex offender can take place in three ways in Scotland, namely:
- The sex offender can self disclose;
- A disclosure can be made by a Chief Constable; and
- A disclosure can be made by social workers.
3 The legal context within which disclosure decisions have to be taken is continually evolving. It is for the courts to give an authoritative statement of the law. Future judgments may throw new light on the balance between the public interests in protecting the public, particularly children and adults at risk, from sex offenders and in maintaining law and order, and the protection of the offenders legal rights and any duty of care to them and their families.
4 There are various areas of law which are relevant to disclosure decisions, including:
- The common law duty of care on the way in which agencies exercise their functions;
- The law relating to confidentiality of information;
- The law on data protection;
- The European Convention on Human Rights, especially the right to the protection of private and family life; and
- The law on defamation.
5 Discussions and decisions to disclose information should be made carefully on a case-by-case basis, taking into account:
- The nature and pattern of previous offender behaviour;
- Compliance by the subject with previous sentences or Court Orders;
- Any behaviour which may indicate a likelihood that the individual will reoffend;
- The risk that further offences will be committed;
- The harm such offences would cause;
- The potential adverse consequence of disclosure to the individual and their family and the need to consider whether the individual is vulnerable;
- The effect of further disclosure on the level of risk posed by the individual and the potential consequences;
- Licence or Community Payback Order conditions to which the individual is subject;
- The possibility of the individual absconding as a result of disclosure; and
- A plan to manage the risks following disclosure.
6 In all cases, practitioners should refer to their own organisations guidance in respect of disclosure matters.
Social Work disclosure
7 Children and families social workers have the authority under the terms of the Children (Scotland) Act 1995 to disclose information to parents, carers or guardians when they consider that a child may be at immediate risk.
8 That said, it is the role of MAPPA to bring together the responsible authorities to discuss the risks posed by the offender, the immediacy of the risk and the best methods to minimise that risk. The decision to disclose information should be within the remit of the MAPPA and part of the risk management plan with the police and social work working collaboratively for the safety of a child or any other member of the public considered to be at risk.
Chief Constable disclosure
9 If it is inappropriate for Social Work to disclose, perhaps for reasons in relation to employment for example, the Chief Constable may take the decision to disclose to an appropriate person. Such a proposal should be discussed and assessed by MAPPA partners before any disclosure takes place in accordance with the usual information sharing protocols ( ISPs) unless time does not permit such discussion.