Date updated:

Disclosure of sexual convictions whether it be to extended family, employers or neighbours can have a huge impact on the offender. There can be significant consequences to their employment, family or social life.

There are two schemes which provide for the disclosure of previous sexual convictions.

Firstly, following conviction for a sexual offence, most offenders will be managed by Multi-Agency Protection Arrangements (MAPPA).

S.327a Criminal Justice Act places a legal obligation on the multi-agency to consider whether to disclose information about an offender in order to protect victims, potential victims, staff and other persons in the community. The overriding factor is the need to protect the public and safeguard children and adults at risk.

Second, the Child Sex Offender Disclosure Scheme operates independently from MAPPA. Through that scheme anyone can make an application about a person (subject) who has some form of contact with a child or children. This could include any third party such as a grandparent, neighbour or friend. This is to ensure any safeguarding concerns are thoroughly investigated. A third party making an application would not necessarily receive disclosure as a more appropriate person to receive disclosure may be a parent, guardian or carer.

Both schemes have guidance documents and follow similar principles when deciding whether to make a disclosure.

The key principle is that disclosure is not automatic. There are checks and balances provided by the guidance documents and an informed decision must be made and recorded. Alternatives to disclosure should be considered.

Any disclosure must comply with the law. It must comply with Article 8 Human Rights Act and Data Protection Act 2018.

Under the Data Protection Act 2018, convictions are sensitive personal data. Previous convictions are confidential. Any disclosure must comply with the principles and must be lawful, fair and proportionate. It is not automatic.

The decision will need to consider the circumstances and whether disclosure is needed to protect the public and that outweighs the offenders right to privacy. There will need to be careful considerations of the facts of the case.

In the case of R (on the application of XX) [2014] EWHC 4106 (Admin), the Court of Appeal confirmed the schemes for disclosure were lawful but that each disclosure will turn on the facts and merits of its own case. That is of course not surprising but reaffirms that the decision maker will need to consider carefully the likelihood and degree of harm that might arise from the disclosure, what alternatives can be put in place and is it proportionate to disclose.

Importantly, the decision maker will need to consider the impact on the offender. Where possible, their views should be sought. Is there a risk of loss of protective factors; for example, loss of employment or social support. Does the loss of protective factors increase his risk of re-offending? Is there a risk the disclosure is not kept confidential? Will there be any public order concerns? Are their alternatives? These are all factors to weigh up before that decision should be made.

Each decision must be considered on its merits, having regard to the individual circumstances of the case.  Both the likelihood and the impact of the risk should be taken into account.  Any decision to disclose should be made on a multi-agency basis wherever possible.