Standard Operating Procedure

Transcription

1 Disclosure Scheme for Domestic Abuse Scotland (DSDAS) Standard Operating Procedure Notice: This document has been made available through the Police Service of Scotland Freedom of Information Publication Scheme. It should not be utilised as guidance or instruction by any police officer or employee as it may have been redacted due to legal exemptions Owning Department Version Number 3.00 Date Published 25/05/2018 Licensing and Violence Reduction Division OFFICIAL

2 Compliance Record Equality Impact Assessment: Date Completed / Reviewed: 22/09/15 Information Management Compliant: Yes Health and Safety Compliant: Yes / No Publication Scheme Compliant: Yes Version Control Table Version History of Amendments Approval Date 1.00 Initial Approved Version 30/09/ Amendment to paragraph to comply with Information Management Compliance 01/10/ Updated to reflect the new Data Protection Act /05/2018 Version 3.00 OFFICIAL 2

3 Contents 1. Purpose 2. Scope and Aim of the Disclosure Scheme for Domestic Abuse Scotland (DSDAS) 3. Classification of Process 4. Timescales Associated with the DSDAS 5. Principles Underpinning the DSDAS 6. Stage 1 Application for Disclosure 7. Stage 2 Initial Contact With Applicant and First Police Checks Carried Out 8. Stage 3 Face-to-face Meeting, Risk Assessment and Implementation of Safety Plan 9. Stage 4 Referral to Local Decision Making Forum 10. Stage 5 Disclosure of Information 11. Protected Group Considerations Appendices Appendix A Appendix B Appendix C List of Associated Legislation List of Associated Reference Documents List of Associated Forms Version 3.00 OFFICIAL 3

4 1. Purpose 1.1 This SOP is supported by the following Police Service of Scotland, (hereinafter referred to as Police Scotland), policies: Data Protection Policy, Information Security Policy, Protection of Vulnerable Groups Policy, Records Management Policy and the Crime Investigation Policy. 1.2 The purpose of this document is to provide guidance on the operation of the Disclosure Scheme for Domestic Abuse Scotland (DSDAS). 1.3 The DSDAS proposes a mechanism for the better management of risk through the sharing of relevant information about one person s history of Domestic Abuse with another who is in a relationship with the former, or to a third party deemed the best placed to safeguard that person. It is proposed that through the sharing of relevant information those who may be at risk of Domestic Abuse are better able to make an informed decision on whether to continue in the relationship. 1.4 The DSDAS seeks to build on broadly equivalent schemes established in police areas across England and Wales. 2. Scope and Aim of the Disclosure Scheme for Domestic Abuse Scotland 2.1 The principle aim of the DSDAS is to Keep People Safe. It accords with, and fulfils, a key policing principle in terms of Section 32, Police and Fire Reform (Scotland) Act It is a model which supports the operation of effective and consistent procedures to consider whether to disclose information to enable a partner of a previously violent or abusive individual to make informed choices about whether and how to continue in that relationship. 2.2 The DSDAS does not require new legislation. Any disclosures must be made within the existing legislative framework and in particular the Police and Fire Reform (Scotland) Act 2012, the Human Rights Act 1998, the Data Protection Act 2018 and relevant case law including Osman v United Kingdom. 2.3 Critical to the success of the DSDAS is the need for an assessment of risk which must be completed at every stage of the disclosure process. This will begin with the completion of the form Disclosure Scheme Application Form ( ) where evidence supporting the application will be thoroughly assessed to identify the level of risk. 2.4 Officers must be alert to the impact of Domestic Abuse on any children specified in the DSDAS application. The recognition of children who may be at risk (Domestic Abuse or otherwise) is the responsibility of all officers involved in each stage of the scheme. In circumstances where child protection matters are identified, a child protection concern form must be completed and appropriate agencies notified via the Interim Vulnerable Persons Database (IVPD). Version 3.00 OFFICIAL 4

5 2.5 The DSDAS operates two entry pathways that may lead to disclosure being made: Right to Ask and Power to Tell. 2.6 The first entry pathway is Right to Ask which is modelled closely on the Keeping Children Safe process found in the Keeping Children Safe SOP. It is triggered when a person makes a direct application to Police Scotland for information about an individual whom they suspect may have a history of violent or abusive behaviour towards a previous partner. 2.7 The second entry pathway is Power to Tell. It is triggered when Police Scotland receive indirect information or intelligence about a person thought to be at risk and where, after appropriate checks are made, Police Scotland judge that a disclosure should be made to safeguard that person. 2.8 The DSDAS aims to keep people safe by focussing on identifying the level of risk and managing the risk through disclosure of information where reported perpetrators of Domestic Abuse are identified through information held about them which reasonably leads the police and other safeguarding agencies to believe that latter person poses a risk of harm. 3. Classification of Parties Involved 3.1 Domestic Abuse 3.2 The Joint Protocol between Police Scotland and Crown Office and Procurator Fiscal Service In partnership, challenging domestic abuse provides the definition of what is considered to be Domestic Abuse which will be utilised by the DSDAS. 3.3 The applicant who is in a relationship with a potential perpetrator of Domestic Abuse (B) may be referred to as A (or Person A ). 3.4 The person making the application under Right to Ask will be referred to as the Applicant. 3.5 The subject of the application who is in a relationship with person A may be referred to as B (or Person B ). 3.6 A third party with some form of contact with A may include persons such as a parent, relative, neighbour or friend and may be referred to as C (or Person C ). (This does not include partner agencies) 3.7 This is to ensure any safeguarding concerns are thoroughly investigated. Although C may make such an application, any disclosure which is made may still be made to A (the person potentially at risk) or to someone else deemed as the person best placed to safeguard A. (E.g. advocacy worker, parent). Version 3.00 OFFICIAL 5

6 3.8 The local Decision-Making Forum (DMF) is composed of safeguarding agencies: Police Scotland, Social Work Services and third sector agencies. They will meet to consider making a disclosure. Ideally, this should be within the existing procedures governing the convention and operation of the Domestic Abuse Multi-Agency Tasking And Co-ordinating (MATAC) group or Multi-Agency Risk Assessment Conference (MARAC) or, where this is not possible, another appropriate forum that local needs determine and which can deliver the intended outcomes of the DSDAS. 3.9 Disclosure is the information about B which is shared with A (directly or indirectly) deemed necessary and proportionate to protect A. 4. Timescales Associated with the DSDAS Stage 1 Stage 2 Stage 3 Stage 4 Maximum Timescales for Disclosure Scheme for Domestic Abuse Scotland Right to Ask Initial contact with applicant and first police checks carried out. Face to face meeting with applicant, completion of DAQ Risk Assessment and implementation of appropriate safety plan. Referral to local Decision Making Forum Submission of Application Form To be completed within 3 days from receipt of application form. To be completed within 12 days from conclusion of Stage 2. To be completed within 20 days from conclusion of Stage 3. Power to Tell Initial contact with applicant and first police checks carried out. Background checks and preparation of Decision Making Forum paperwork. Referral to local Decision Making Forum To be completed within 3 days from receipt of application form. To be completed within 12 days from conclusion of Stage 2. To be completed within 20 days from conclusion of Stage 3. Stage 5 Disclosure to be completed within 10 days from conclusion of Stage Principles Underpinning the DSDAS 5.1 Information Sharing and Disclosure Overview 5.2 The successful implementation of the DSDAS is dependent, firstly, on appropriate information sharing between agencies and, secondly, on appropriate disclosure to a third party for the purpose of protecting the public. Version 3.00 OFFICIAL 6

7 5.3 Police Scotland has a statutory power under the Section 32, Police and Fire Reform (Scotland) Act 2012 to disclose information where it is necessary to prevent and detect crime, and it is on this statutory power that the authority of Police Scotland to disclose information under the DSDAS rests. 5.4 This power must be exercised in accordance with other relevant legal powers and obligations including the Data Protection Act 2018 and the European Convention on Human Rights. The DSDAS operates on the premise that the DMF involves a number of agencies but that it is police-led and that, ultimately, disclosures made in terms of the DSDAS are made by Police Scotland. 5.5 At all times, the power to both share and/or disclose information must be considered on a case-by-case basis. Each decision must be justifiable as being lawful, necessary and proportionate Information sharing is the sharing of information between or among agencies (both statutory and non-statutory) involved in the DSDAS Disclosure is the sharing of specific information about B with A or C for the purpose of protecting A. 5.6 Information that is shared under the DSDAS remains the responsibility of the agency that holds it. For example, Social Work Services (Criminal Justice) may hold certain information regarding their statutory supervision of a Domestic Abuse perpetrator, and Police Scotland may hold certain information regarding the separate management of such a person. 5.7 Should such a person request information held by an agency on them, then it will be for the relevant agency to deal with Subject Access Requests under the Data Protection Act 2018 and other challenges that may arise. The proper approach to deal with a Subject Access Request does not form part of this guidance. 5.8 The DMF is not a data controller (for the purposes of the Data Protection Act 2018). The DMF is an arrangement for decisions to be taken on the management of risks it assesses are posed to A by B. It therefore cannot be the owning agency for any information on B. Agencies must ensure that, following a disclosure decision made by the DMF, the information received as part of that local decision-making process is processed in accordance with the Data Protection Act This section of the guidance should be read in conjunction with the Data Sharing Code of Practice issued by the Information Commissioner in May 2011 and a Scottish Executive Circular from The code of practice deals with a number of important issues including Data Sharing and the Law; Fairness and Transparency; Security; Governance and Individuals Rights. Officers engaged in the process should familiarise themselves with the contents of the document. Version 3.00 OFFICIAL 7

8 5.10 The Power to Share Information 5.11 The purpose of sharing information about individuals is to enable the relevant agencies (both statutory and non-statutory) to work more effectively together in assessing risks and consider how to manage them. This points towards sharing all the available information that is relevant, so that nothing is overlooked and public protection is not compromised Agencies must also respect the statutory rights of individuals including the Right to Privacy. In order to strike the right balance, agencies require a clear understanding of the law in this area. The most relevant factors are common law (where appropriate), Section 32, Police and Fire Reform (Scotland) Act 2012, the Data Protection Act 2018, and the Human Rights Act 1998 (in respect of public authorities) The Power to Disclose Information 5.14 The ability of the local DMF to recommend a disclosure of information must be decided on a case-by-case basis. Although the decision will, ultimately, rest with Police Scotland it will be helpful for the DMF to bear in mind that Police Scotland will require to be satisfied that any such disclosure is lawful, necessary and proportionate to justify the disclosure being made. The agencies (both statutory and non-statutory) at the DMF are encouraged to have regard to all of the following: Whether there is the power to disclose the information (in terms of Section 32, Police and Fire Reform (Scotland) Act 2012 Articles 2,3 and 8 of the European Convention on Human Rights (see Appendix A); and Data Protection Act There is a general presumption that certain types of information held by Police Scotland about an individual will be treated sensitively and, in most cases, will be treated as confidential. That will include information about previous convictions, and possibly about spent convictions (in terms of the Rehabilitation of Offenders Act 1974) It might also include information arising from dealings with the police which might not have led to a conviction but where the individual might have been detained or arrested, and never charged or reported to the COPFS Additionally it may include information where the individual has come to the adverse attention of the police because someone has made a complaint about them, or it may be intelligence which is held about an individual. All these types of information will be included, where relevant, for consideration in terms of the DSDAS. Version 3.00 OFFICIAL 8

9 5.18 Accordingly, when considering whether to recommend a disclosure of information, the local DMF ought to follow this 3 stage test That the local DMF has the ability to recommend a disclosure of information by Police Scotland in terms of the Police and Fire Reform (Scotland) Act Such a disclosure would be lawful if it accorded with one of the general policing duties in terms of the 2012 Act Police Scotland must be able to show that it is reasonable to conclude that such disclosure is necessary to protect the public (or particular sections of the public) from crime: and In the context of this scheme, Police Scotland would have to conclude that disclosure to the applicant is necessary to protect A from being a victim of a crime or abusive behaviours: and Any disclosure is an interference with the rights of B (under Article 8 of the European Convention of Human Rights) and it must be proportionate Where data is held by Police Scotland there is a reasonable expectation that the information held will be afforded the rights of Privacy as protected by Article 8 of the Convention Rights The principle of proportionality provides that whilst Article 8 is necessary in a democratic society, the protection of vulnerable members within the community will demand that where there is a pressing social need to disclose information to ensure a vulnerable persons personal safety, this will occur only when there is an overriding public interest to do so. Using a rigorous process, an examination of the circumstances will be considered relative to the threat presented. Only after all factors have been considered and the threat carefully assessed will a decision be made to disclose information This involves weighing in the balance the likely consequences for B if certain details about him/her are disclosed as against the nature and extent of the risks that B poses to A This stage of the test also involves considering the extent of the information which needs to be disclosed e.g. it may not be necessary to tell the applicant the precise details of the offence for the applicant to take steps to protect A. There must be a balance of the rights of B against the need to prevent crime and all decisions in this regard must be fully documented Other Principles 5.20 The following other principles also underpin the DSDAS at every stage of the process: The DSDAS endeavours to advance a model for the assessment sharing and possible disclosure of information about those with a history of Domestic Abuse to assist those who might yet become victims of same. It also endeavours to raise public confidence and increase the protection of potential victims of Domestic Abuse by sharing relevant sources of information showing, or tending to show, that an individual B has a history of Domestic Abuse. Such information will be judged based on a risk assessment and, where appropriate, the National Intelligence Model. Version 3.00 OFFICIAL 9

10 No disclosures should be made to A or C in respect of B without following all appropriate stages of this guidance document (unless there is an identified immediate/imminent risk of harm to A ) At all times, consideration must be given to the safety of A with appropriate actions (e.g. safety planning, information on safeguarding) implemented, followed through and recorded Under the Right to Ask entry route, if at any stage Police Scotland believe that the applicant is alleging a crime (e.g. a specific incidence of Domestic Abuse by B on A ), then Police Scotland must also pursue the crime report under normal criminal investigation procedures Subject to the processes outlined in this document being met in full including the data sharing and disclosure process mentioned earlier. A disclosure will be made to A unless there is a compelling reason(s) not to, for example the level of risk indicates that disclosure to B would put A in danger; or additionally where A is considered too vulnerable to understand the consequences of the disclosure. In such circumstances disclosure will be made to the person best able to safeguard A as determined by the level of risk identified, (e.g. relative, social worker). 6. Stage 1 - Application for Disclosure 6.1 Right to Ask 6.2 From the outset of the scheme, information will be given to A or C warning them of the timescales associated with the process. For the purpose of the Right to Ask entry route, the trigger that may lead to disclosure under this scheme occurs when an applicant makes a direct application to the police for information about any known previous violent and abusive behaviour of B. 6.3 A distinction is made where the applicant is either the partner (known as A ) who is in a relationship with B, or is a third party (known as C ) who has some form of contact with A. Whilst C may competently make an application for disclosure it may be assessed that C may not be the most appropriate person to receive the information. 6.4 There may be occasions when A is the most appropriate person to receive the disclosure, however for reasons of incapacity may be unable to fully understand the disclosure information and the potential risks it holds. In such a situation it may be appropriate to identify an Advocacy Worker or Social Worker to receive the disclosure and advise A appropriately. Version 3.00 OFFICIAL 10

11 6.5 Under Right to Ask, applications can be made by A or C by one of the following means: A or C completes an online application; A or C attends a police station in person; A or C encounters a police officer or member of police staff in the street; A or C contacts police via 101; A or C applies to the scheme as part of a police investigation into an incident. 6.6 If A or C makes an enquiry to a partner agency rather than Police Scotland, then normal procedures adopted by the partner agency for handling this type of request should apply. However, if A or C makes it known that they are making an application to the DSDAS then they should be referred to Police Scotland. 6.7 It is anticipated that the majority of applications by A or C will be online or via the contact centre. Where front-line police officers and members of police staff receive a verbal application during the course of their normal duties, they should record the relevant details and then complete the application form on their behalf. Officer s details (name identifier number and location) will be added in the free text box in section 7. If A or C attends at a police station, they must be afforded the opportunity to make their application in private. 6.8 Power to Tell 6.9 For the purposes of the Power to Tell entry route, the trigger which may lead to a disclosure under this scheme is where Police Scotland receive indirect information that may impact the safety of A and which has not been conveyed via the Right to Ask process Indirect information is likely to be information received by Police Scotland arising from the following activities: 6.10 An investigation into a crime, where as part of that investigation, Police Scotland have reason to believe that A may be at risk from B. This will most likely occur during Domestic Abuse Task Force (DATF) enquiries where current partners are established Information on alleged offending by B that is received from: Partner agencies (statutory and/or third sector) as part of routine information sharing at MATAC or MARAC; Intelligence sources; Either A or B coming into contact with the police as part of their routine operational duties. Version 3.00 OFFICIAL 11

12 6.13 Serving Police Officers / Members of Police Staff 6.14 If an application is made under the DSDAS and it is believed that the application refers to an individual who is a police officer or police member of staff, all background checks will be completed by Professional Standards Department (PSD) and Counter Corruption Unit (CCU) staff. In this respect, any request for such checks should be forwarded to the following single point of contact (SPOC); PSD - Chief Inspector, Misconduct CCU - Detective Chief Inspector, CCU Intelligence 6.15 Any relevant information held will thereafter be returned to the enquiry officer. It will still be a matter for the DMF to decide whether any information should be disclosed to the applicant in line with normal protocols. 7. Stage 2 Initial Contact with Applicant and First Police Checks Carried Out 7.1 Right to Ask 7.2 Following receipt of an application, the applicant should be contacted by a domestic abuse officer to acknowledge the application and ascertain any immediate concerns or issues that may exist in terms of risk. 7.3 The applicant should be informed during this initial contact that a face-to-face meeting will take place within the next 12 days. A suitable date, time and venue should be arranged. 7.4 It is vital that a safe means of communication is agreed with A or C where the place, means and timing is determined by A or C. This is critical to safeguarding A. 7.5 Applicants must be informed of and provided with the following information about the DSDAS: A disclosure will be made to the person(s) best placed to safeguard A from harm. This will normally be A, unless there is a compelling reason not to disclose to A ; An overview of the DSDAS and the timescales for each stage of the process; Instructed to contact Police Scotland should there be a change in circumstances that may increase risk or impact on safety. 7.6 Minimum police checks should be undertaken to build an initial picture on A, B and C (if applicable). This is also to assess whether the application should be progressed. This process will inform officers if B poses any immediate risk to A or C (e.g. apprehension warrant or Domestic Abuse warning marker for B ). The minimum police checks at this stage are: Version 3.00 OFFICIAL 12

13 Police National Computer (PNC) Criminal History System (CHS) Crime Recording System Vulnerable Persons Database (ivpd) Scottish Intelligence database (SID) (Officers completing SID checks must have relevant access levels). 7.7 This stage should be completed within 3 days of the application being received. 7.8 Power to Tell 7.9 Following receipt of an application, the applicant should be contacted by an officer specialising in domestic abuse to acknowledge the application and ascertain any immediate concerns or issues that may exist in terms of risk Applicants must be informed of and provided with the following information about the DSDAS: A disclosure will be made to the person(s) best placed to safeguard A from harm. This will normally be A, unless there is a compelling reason not to disclose to A ; An overview of the DSDAS and the timescales for each stage of the process; Instructed to contact Police Scotland should there be a change in circumstances that may increase risk or impact on safety Minimum police checks should be undertaken to build an initial picture on A, B and C (if applicable). This is also to assess whether the application should be progressed. This process will inform officers if B poses any immediate risk to A or C (e.g. apprehension warrant or Domestic Abuse warning marker for B ). The minimum police checks at this stage are: Police National Computer (PNC) Criminal History System (CHS) Crime Recording System Vulnerable Persons Database (ivpd) Scottish Intelligence database (SID) (Officers completing SID checks must have relevant access levels) This stage should be completed within 3 days of the application being received. Version 3.00 OFFICIAL 13

14 8. Stage 3 Face to Face Meeting, Risk Assessment and Implementation of Safety Plan 8.1 Right to Ask 8.2 The application should be shared with relevant local partners as soon as possible after Stage 2 in order that background checks can be carried out on B (and A and C if applicable). Partners should provide feedback with regards to any relevant information timeously for inclusion in the referral to the local Decision Making Forum (DMF) (Stage 4). 8.3 Further detailed checks on Police Scotland systems are required during this stage to establish any further risks. These include: Violent and Sex Offenders Register (VISOR); National Crime Management Systems; Legacy Vulnerable Persons Databases; National Command and Control systems; Police National Database (PND); and International checks if information suggests that B resided in another country. 8.4 The information gathered via the initial contact with the applicant and the minimum checks form both the initial risk assessment on A and the basis of a decision on whether to progress the application. It will be for an officer of the rank of Inspector or above to review the information and make the decision on whether to progress the disclosure application following the initial risk assessment. In the event the decision is not to progress then the rationale should be recorded, as should any other action which is instructed. 8.5 From the steps outlined above, if it is identified there is an imminent risk of harm to A or any other person, action must be taken immediately to safeguard those at risk. 8.6 If following the initial risk assessment, an officer of the rank of Inspector or above decides that the consideration of the disclosure application should continue, the person who made the application (either A or C ) must be seen in a face to face meeting. Thus an enquiry officer should be appointed. The meeting is to ensure that the request is: Genuine; To establish further details about the application in order to further assess risk and to inform a decision around disclosure; and To provide safety information and advice to safeguard A. Version 3.00 OFFICIAL 14

15 8.7 The face-to-face meeting should take place as soon as practicable and, in any event, no later than 12 days after completion of Stage It is recommended that the enquiry officer is an officer with experience of Domestic Abuse investigations as they will have the skills and professional knowledge of managing Domestic Abuse perpetrators and investigations. This requisite knowledge and experience will assist in the relevant questioning of A or C and assist in assessing risk. 8.9 If at any stage during the face-to-face meeting, the enquiry officer believes that A or C is alleging a crime rather than asking for information about the previous offending of B, then Police Scotland must investigate the alleged crime It is possible for the procedures leading to a disclosure under the DSDAS to run concurrently with any criminal investigation. All contact with the applicant will be recorded on the application form and the face-to-face meeting must take place within a safe environment for the applicant Before progressing enquiries on the application, the enquiry officer must: Warn A or C that if they wilfully or maliciously provide false information to Police Scotland in order to try and get a disclosure they are not entitled to, that they may risk prosecution e.g. if they have provided false details in an attempt to make a malicious application, they may be prosecuted for wasting police time. If this is suspected, the evidence to support such a suspicion must be fully documented. Warn A or C that if they disclose evidence of an offence whilst registering a concern, it may not be possible to maintain their confidentiality; Warn A or C that information disclosed by Police Scotland must only be used for the purpose for which it has been shared i.e. in order to safeguard A ; Assure A or C that the application will be dealt with confidentially. There should however be a caveat placed on this - that confidentiality can only be guaranteed pending the outcome of the DAQ risk assessment process. If a resultant disclosure is to be made to A or C, Police Scotland must consider whether B should be informed (in line with the Police Scotland Threat to Life Warnings SOP that a disclosure has been made to A or C. If such a disclosure would increase the risk to A or any other person, A or C should be informed that it will not be made; Where A makes the request, ensure s/he is aware of support available within the DSDAS process; Ask A or C for proof of identity. Acceptable forms of identification include: o Passport o Driving Licence Version 3.00 OFFICIAL 15

16 o Other trusted form of photo identification o Birth certificate (including authorised extract copies); o Household utility bill (council tax, water, gas, electricity); o Bank statement. Photocopies of these documents are acceptable 8.12 Best practice is that photo identification with confirmation of date of birth and address is required. However, it is accepted that some of the vulnerable individuals who may make applications may not have the above forms of identification. In these cases it may be possible to refer to another agency to confirm the individual s identity (e.g. social worker, health visitor) A disclosure must not be made to A or C without verification of identity or if the applicant chooses to remain anonymous. However, if either of these two eventualities arises, checks should still be made on the information given about B and, if concerns are identified, then the application should be treated as an intelligence submission which may be used to inform safeguarding measures for A under the Power to Tell pathway Information to be obtained during the Face-To-Face Meeting 8.15 The enquiry officer should confirm the following information from A or C which should also be contained within the form Disclosure Scheme for Domestic Abuse Scotland Application Form ( ). Name including any other names used Date of Birth Place of Birth Address Further details must also be obtained from the applicant to confirm the reliability of the application Reason for contact History of relationship between A and B 8.16 A or C should be told that the person to whom the disclosure is made will be asked to sign the relevant documentation stating that they agree that the information is confidential and they will not disclose this information further. A warning must be given that legal proceedings could result if this confidentiality is breached and that it may also be a breach of Section 55, Data Protection Act 2018 for a person to knowingly or recklessly obtain or disclose personal data without the consent of the data controller (i.e. the agency holding the information that will be disclosed, which in most cases will be Police Scotland). This should be explained to the person and their signature obtained on the form. Version 3.00 OFFICIAL 16

17 8.17 If the person is not willing to sign the form the enquiry officer will record this and inform the local DMF. This forum will then need to consider if disclosure should still take place. The outcome should be recorded and considered in the subsequent risk assessment and decision making process Domestic Abuse Questions (DAQ) Risk Assessment 8.19 During the face-to-face meeting, the Domestic Abuse Questions (DAQ) assessment of the risk posed should be completed whilst giving cognisance to the following scenarios When the original applicant is A, the DAQ will be completed. This risk assessment should include revisiting and taking account of the information obtained during: the initial contact; the checks on Police Scotland systems and any returned partner agency checks; and the information provided by A or C during the face-to-face meeting 8.21 The DAQ is very much a living document and should be updated regularly in light of additional information provided by A or C, partner agencies and checks on Police Scotland systems 8.22 The research and checks should fill any gaps in information and this stage should ensure all available information known to Police Scotland on the individuals concerned with the enquiry has been established When the original applicant is C, the DAQ should not be completed. Instead, the enquiry officer should consider whether, subject to the paragraphs below, a decision to disclose information should be referred to the decision-making forum During the face-to-face meeting and completion of the DAQ, the applicant should be offered information leaflets on the DSDAS, which should give information on what they can do in the interim to better safeguard A pending the outcome of the application. A victim safety plan should also be implemented if deemed appropriate Officers conducting the DAQ must be aware that A may be unaware that they are the victim of crime under scots law or that the officers have a duty to investigate and where a crime is established, raise a crime report It is therefore important that A understands the purpose of the DAQ is to establish the level of risk and to consider appropriate victim safety measures Should a victim disclose a crime or offence then the following process should be adopted: Version 3.00 OFFICIAL 17

18 Officers must interrupt the DAQ. Officers must afford victims the opportunity to report the incident. If the victim does not wish to do so at this time, officers must not probe any further and simply assure the victim that they can report the incident at any time in the future. Officers should thereafter resume completion of the DAQ Further guidance on the application of the DAQ can be found by accessing the Proactive Approach to Potential Victims of Crime Guidance Document 8.29 This stage should be completed within 12 days from the completion of Stage Power to Tell 8.31 The application should be shared with relevant local partners as soon as possible after Stage 2 in order that background checks can be carried out on B (and A and C if applicable). Partners should feedback relevant information timeously for inclusion in the referral to the local DMF (Stage 4) Further detailed checks on Police Scotland systems are required during this stage to establish any further risks. These include: Violent and Sex Offenders Register (VISOR); National Crime Management Systems; Legacy Vulnerable Persons Databases; National Command and Control systems; Police National Database (PND); and International checks if information suggests that B resided in another country The information gathered via the initial contact with the applicant and the minimum checks form both the initial risk assessment on A and the basis of a decision on whether to progress the application. It will be for an officer of the rank of Inspector or above to review the information and make the decision on whether to progress the disclosure; in the event the decision is not to progress then the rationale should be recorded, as should any other action which is instructed From the steps outlined above, if it is identified there is an immediate/imminent risk of harm to A or any other person, action must be taken immediately to safeguard those at risk. Version 3.00 OFFICIAL 18

19 9. Stage 4 - Referral to Local Decision Making Forum 9.1 At this point in the DSDAS it is envisaged that, from either the Right to Ask or Power to Tell entry routes, sufficient information will have been gathered and checked to determine whether a credible risk of harm to A in the form of previous Domestic Abuse behaviour from B exists. 9.2 It will be for the local DMF to recommend whether a disclosure should be made by Police Scotland. However, before a referral is made to the local DMF, the enquiry officer should offer their categorisation of the disclosure application (under Right to Ask ) or the indirect information received (under Power to Tell ) as either a concern or no concern and it will be for the DMF to pay such regard to the enquiry officer s categorisation as it deems appropriate. The application should be referred to the forum no later than 20 days after completion of Stage Categorising a Concern or No Concern 9.4 A concern occurs if A is at risk of harm from B, based on a balanced profile of B that takes into account the following factors: B has convictions for an offence related to Domestic Abuse There is other information (including intelligence) known about the previous violent and abusive behaviour of B which may include: o o o o Cases not proceeded with; and/or Intelligence concerning violent and abusive offences; and/or Previous concerning behaviour towards previous partners. This may include a pattern of behaviours where B has exercised coercive control over previous partners. Note: Police Scotland may consider the impact of a spent conviction when conducting a risk assessment on A, regardless of the fact that the spent conviction can not then be disclosed to the DMF or to A (or C ); and/or Any other convictions that may be of concern and could be linked to elements of coercive control or display patterns of potentially abusive behaviour. There is concerning behaviour by B demonstrated towards A. This may include a pattern of behaviours that indicate B is exercising coercive control over A. 9.5 If a concern occurs, Police Scotland must consider if representations should be sought from B to ensure that Police Scotland have all necessary information to make a decision in relation to disclosure. As part of this consideration, Police Scotland must also consider whether there are good reasons not to seek representation, such as the need to disclose information in an emergency or seeking representation may put A at risk. Version 3.00 OFFICIAL 19

20 9.6 A no concern applies where B has: No convictions for an offence related to Domestic Abuse; There is no other intelligence that indicates that B s behaviour may cause harm to A ; There is insufficient intelligence or information to register a concern; There are no other convictions of concern that could be linked to elements of coercive control or display patterns of potentially abusive behaviour. 9.7 Once Police Scotland has determined whether the initial trigger can be categorised as a concern or no concern, the final decision to consider making a recommendation to disclose must be referred to the local DMF for consideration at their next meeting (bearing in mind the timescales provided for in this Guidance). 9.8 It will be for the local DMF to make the final decision on whether the trigger is a concern or no concern based on the information gathered by Police Scotland and whether to recommend that disclosure should be made or not. 9.9 If it is identified there is immediate/imminent risk of harm to A or any other person, then action must be taken immediately by Police Scotland to safeguard those at risk The Local Decision-Making Forum 9.11 The DMF should be chaired by the Superintendent who has ownership of the Domestic Abuse portfolio for the territorial division. A suitable deputy may be nominated by this officer if they are unavailable. This will be a minimum rank of Chief Inspector. The DMF forum should be a multi-agency body, ideally the MATAC or MARAC. It may consist of some of the following agencies (as appropriate): Police Social Work Services (Criminal Justice) Prison Service Health Housing Education Independent Domestic Abuse Advocate (IDAA) A representative from each of the following: o o o Women s support service Men s support service Victim s support service Version 3.00 OFFICIAL 20

21 o Perpetrator programme 9.12 The minimum number of bodies constituting the local DMF should be no less than three, and Police Scotland must be included on all occasions. Groups that make up the DMF need to be registered data controllers and have appropriate data security policies and procedures in place that subscribe to the same standards as Police Scotland The Local Decision Making Principles 9.14 The forum must consider local decision making principles when making a decision on whether to recommend to Police Scotland to disclose. There are three principles that the local DMF must take into account before making the decision to disclose information that protects A Principle 1: Three-Stage Disclosure Test 9.16 There is a general presumption that certain details held by the police about a person s previous behaviour (for example, their previous convictions) are private and, in such circumstances, the DMF should endeavour to ensure that the following three stage test is satisfied before a decision to disclose is made: That the local DMF is empowered to make a recommendation to Police Scotland to disclose information about B to A (or C ). As Police Scotland is relying on statutory powers it must be shown that it is reasonable to conclude that such disclosure is necessary to protect the public or particular sections of the public, from crime. That would make any such disclosure lawful; In the context of the DSDAS, Police Scotland will be required to conclude that disclosure to the applicant is necessary to protect A from being the victim of crime; and Any disclosure that interferes with the rights of B (as articulated in Article 8 of the European Convention of Human Rights and the Data Protection Act 2018) must be proportionate. The principles of proportionality remain essential to decision making and will only be undertaken after all factors have been considered and the threat carefully assessed will a decision be made to disclose information. This will include, among other matters, considering the possible consequences for B if certain details about him/her are disclosed against the nature and extent of the risks that B poses to A. There must be a balance of the rights of B against the need to prevent crime and all decisions in this regard must be fully documented. This stage of the test involves considering: o Whether B should be asked if he/she wishes to make representations, so as to ensure that Police Scotland has all the necessary information at their disposal to conduct the Article 8 balancing exercise; Version 3.00 OFFICIAL 21

22 o The extent of the information which needs to be disclosed e.g. it may not be necessary to tell the applicant the precise details of the offence for the applicant to take steps to protect A There may be concerns that relate to B s current behaviour towards A within the disclosure application e.g. abusive or threatening behaviour. In this case, even though there is no recorded information held by Police Scotland or other agencies to disclose to the applicant, the applicant may still be contacted to talk about the local decision-making forum s concerns over B s current behaviour This discussion should cover the steps the applicant should take in relation to these concerns to safeguard A from the risk of harm posed by B. The forum will consider what safeguarding measures could be introduced to support A in the short, medium and long term, determine the roles and responsibility of each agency to ensure that the safety plan remains victim-centred Principle 2: Data Protection Act The type of information about B which is likely to be under consideration in terms of the DSDAS is both personal data and sensitive personal data in terms of the Act. So long as there is adherence to this Guidance then sharing of such information and any disclosure of same (or some of it) will accord with the relevant provisions of the Act Principle 3: Informing B of the Disclosure 9.22 Consideration must also be given as to whether B should be told that information about him/her may be disclosed to the applicant. Such a decision must be based on an assessment of risk or harm to A, if B were to be informed Due consideration must be given on whether the disclosure to B would have potential to escalate the risk of harm to A. If this were to be the case, no disclosure is to be given to B In the event that B is to be informed that a disclosure is to be made to the applicant, then B should be informed about the DSDAS and the implications for them. This also provides agencies with an opportunity to signpost B to relevant support services to allow B to address their offending behaviour A Template Checklist on Disclosure Decision Making Process contains instructions for the local DMF to refer to. This summarises the three principles articulated in this section of the guidance. Version 3.00 OFFICIAL 22

23 10. Stage 5 - Disclosure of Information 10.1 If the local DMF makes a recommendation to Police Scotland to disclose information because it judges that there is a risk of harm to A that warrants a disclosure, then it should consider the following points: What will be disclosed? o The DMF will consider and agree upon the specific wording of a proposed disclosure that contains sufficient information to allow the recipient to make an informed choice with regard to their relationship with B. The disclosure must be accompanied by a robust safety plan tailored to the needs of A and based on all relevant information, which identifies the service provision and the agency leads who will deliver on-going support to A. In agreeing the wording of a disclosure, the DMF must ensure that the information contained in any disclosure must also not prejudice any current or potential future investigations and prosecutions of B, in which A may be a victim or witness. For example, the DMF must consider the impact of disclosing details of B s Modus Operandi with previous victims. To whom should the disclosure be made to? o The disclosure should be provided to the person(s) best placed to safeguard A. Whilst it is envisaged that the majority of disclosures will be made to A, it may not be appropriate to do so in all instances. The judgement of who to disclose to will be determined by the DMF following the information gathered as part of the DSDAS process and subsequent risk assessments. How the disclosure should be made? o o The DMF will consider which agencies are best-placed to deliver the disclosure, based on the information at hand. A joint-agency disclosure is considered best practice. The disclosure will be made in person. In line with safeguarding procedures, it is essential that the disclosure takes place at a safe time and location to meet the specific needs of A If disclosure is made, then the person receiving the disclosure must receive the following information: That the disclosure must only be used for the purposes for which it has been shared i.e. in order to safeguard A ; The person to whom the disclosure is made will be asked to sign an undertaking that they agree the information is confidential and that they may only share the information further in order to safeguard themselves; The person to whom the disclosure is made will be asked to inform Police Scotland of their intention to share the information and with whom they intend to share it with; Version 3.00 OFFICIAL 23

24 A warning should be given that legal proceedings could result if this confidentiality is breached. This should be explained to the person and they must sign the undertaking If the person is not willing to sign the undertaking, Police Scotland will need to consider if disclosure should still take place. The outcome should be recorded and considered in the risk assessment, decision making process and safety plan At no time will written correspondence concerning the specifics of the disclosure be sent out or left with the applicant in relation to the disclosure of information. This would present a potential risk to intelligence sources, victims and perpetrators should such written information fall into the wrong hands What the applicant is told should be recorded verbatim on the database, printed off and thereafter signed by the applicant. It must not be given to the applicant under any circumstances and will be retained by Police Scotland The person to whom the disclosure is made should be given information to assist them in safeguarding A Decision Made not to Recommend Disclosure 10.8 If the local DMF makes a decision not to recommend disclosure of information because it judges that there is no risk of harm to A that warrants a disclosure, then the forum should follow these actions: If the decision not to disclose has been made following the Power to Tell entry point, then the decision not to disclose plus the rationale should be recorded. Recording the decision in this way may inform future disclosure considerations made on B If the decision not to disclose has been made following the Right to Ask entry point, then the following steps should be taken: The applicant should be visited in person as any written correspondence has the potential to put A at more risk. The applicant should be told that there is no information to disclose given the information/details provided by the applicant and the result of checks made on these details. However, it is important that the applicant is told that the lack of information to disclose does not mean that there is no risk of harm to A, and the applicant should remain vigilant and report any future concerns. This contact also presents an opportunity to provide safeguarding information and signposting to relevant support services. A Disclosure Scheme for Domestic Abuse Scotland Form of Words for Non-Disclosure (Form ) provides a template that may be used to convey suitable wording. B will not be notified where no disclosure is made to the applicant. Version 3.00 OFFICIAL 24