13.1 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.
13.2 Instances of disclosure can include where there are child protection concerns, or where the offender is employed in work in which affords them inappropriate access to children or vulnerable people. The disclosure can take place in three ways in Scotland, namely:
- The offender can self-disclose;
- A Public Interest Disclosure can be made; or
- A disclosure can be made by social workers.
13.3 The legal context within which disclosure decisions are taken is continually evolving and it is for the courts to give an authoritative statement of the law. A balance needs to be struck between on the one hand protecting the public, particularly children and adults at risk, and the maintenance of law and order, and on the other hand the protection of offenders legal rights and any duty of care to them and their families.
13.4 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.
13.5 Discussions and decisions to disclose information should be taken on a case-by-case basis, taking into account:
- The nature and pattern of previous offending behaviour;
- Offender compliance with previous sentences or Court Orders;
- Any behaviour which may indicate a likelihood that the offender 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 they are vulnerable;
- The effect of further disclosure on the level of risk posed by the offender and the potential consequences;
- Licence or Community Payback Order conditions to which the offender is subject;
- The possibility of the offender absconding as a result of disclosure;
- A plan to manage the risk posed by the offender following disclosure;
- The extent of the information which needs to be disclosed.
13.6 In all cases, practitioners should refer to their own organisations guidance in respect of disclosure matters.
Disclosure by Offender
13.7 It is preferable that an offender volunteers information about their behaviour to an affected person or their employer and they should be given the opportunity to do so, however, it is recognised that this may not be feasible or likely in every case, therefore each case should be considered on its own merit. This disclosure requires to be voluntarily made by the offender to a specified individual(s) within a pre-agreed time scale and confirmation of the disclosure carried out to ensure the recipient understands the risk the offenders behaviour poses and to take necessary action.
13.8 If the offender has provided inaccurate or insufficient information, and the risk remains real a Public Interest Disclosure should be undertaken.
13.9 If circumstances allow, without compromising public safety, public protection or the prevention of crime, the offender can be given the opportunity instead to disclose further information to the affected person or employer.
Public Interest Disclosure
13.10 The process for disclosing sensitive information about an identifiable individual when disclosure is necessary in the public interest, there is a degree of urgency with other options not being applicable or when there are no specific statutory powers or relevant Police Scotland procedures is known as Public Interest Disclosure.
13.11 This procedure is designed for disclosing sensitive personal information about an individual to a body, agency, employer or person in a position to mitigate the risks arising from that person's behaviour. Sensitive personal information covered is not restricted to details of an individual's offending behaviour, and can also include information about an individual's health, sexual life, family life or employment.
13.12 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.
Social Work Disclosure
13.13 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.
13.14 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.
Community Disclosure Schemes
Sex Offender Community Disclosure Scheme (Keeping Children Safe)
13.15 The Keeping Children Safe scheme was introduced across Scotland in 2011 and is managed by the Police Service of Scotland. The scheme encourages members of the public to apply for information about an individual who has access to a child if they are concerned that the individual poses a risk to a child's safety and wellbeing.
13.16 Concerned members of the public will in many cases be reassured that the person is not known to the authorities, but even so they are provided with essential child protection advice and information. In cases where the police believe that an individual poses a risk to the child concerned, steps will be taken to ensure the child's safety and relevant information may be provided to the parent, carer, or guardian.
Disclosure Scheme for Domestic Abuse Scotland
13.17 The Disclosure Scheme for Domestic Abuse Scotland ( DSDAS) aims to prevent Domestic Abuse by enabling both women and men with the right to ask about the background of their new partner. It also allows concerned members of the public, such as relatives and friends, to make enquiries about someone's partner if they are concerned that person has been abusive in the past. The concerned relative or friend will not, under normal circumstances, receive any information on the person causing concern. If a disclosure is deemed necessary, lawful and proportionate, the person potentially at risk, or person best placed to safeguard that individual, will receive the information.
13.18 The scheme also creates a formal mechanism for Police Scotland to tell both women and men, who are potentially at risk of abuse from their partner, about that partner's past.