| The Government's Proposals for Regulation of the Private Security Industry in England and Wales | |||||
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Chapter 3 - Protecting the Public 3.1 For a considerable time the police, the public and the industry itself have been concerned about the probity of the individuals working in the industry and running private security companies. At present there is no satisfactory way of checking an individual's credentials before he or she is employed in the private security industry and anyone can set up a security company. Some companies require applicants to provide a print out of their criminal record from the police as can be obtained under the Data Protection Act. This practice, known as "enforced subject access", is not confined to the private security industry. The Government regards it as undesirable that this data protection right should be used in this way. In its July 1997 White Paper setting out proposals for fresh data protection legislation, it announced its intention of putting an end to the practice. The Data Protection Act 1998 includes provisions to achieve this. However, the Government recognises that the security industry and others need to be able to continue to gain information about any criminal convictions of those whom they are considering for employment. The Act makes clear that the provisions may not take effect until the arrangements for extended criminal conviction checks under Part V of the Police Act 1997 are in force. 3.2 Most reputable security companies use the provisions of BS7858 'Security Screening' to vet their staff before employment.
3.3 Whilst this process is useful in obtaining details of an applicant's employment history and some indication of character it does not include consideration of offences outside the provisions of the Rehabilitation of Offenders Act 1974 and its use is not obligatory. Even where it is used it is often difficult to get references from all previous employers and it is open to abuse, for example, any 'gaps' in the employment record which cannot be clarified can be 'signed off' by the company. The Home Affairs Select Committee said in its report in 1995 that "vetting procedures for the industry as they currently stand are, in our opinion, inadequate." 3.4 The Government shares that view and has therefore decided that it is necessary to license all those who provide security services in the sectors set out in Chapter 5. This will include not only the operatives/employees but also managers and directors of companies. Individuals will have to apply to the Authority for a licence before being employed in the private security industry or setting up a private security firm. This will apply equally to contracted staff and those who are directly employed to provide security services ('in-house' staff). For 'in-house' staff it is proposed that licences will be required by everyone who is responsible for security provision up to and including the manager or director of security. 3.5 Ensuring that the right people are licensed will be important. It is not intended that a licence will be required if security is only a minor part of an individual's job (for example, a general repair man who would be required to repair locks) but a licence will be required by anyone whose job includes a significant element of security provision. The Government acknowledges that defining those who should be licensed will be difficult and invites comments on how this might be achieved and examples of potentially problematic areas. 3.6 Licences are not intended to replace good employment practice such as checking references or employment history and it will still be for companies to determine if someone is suitable for employment in a particular post. Licensing is intended to address the serious concerns about vetting in the security industry and to ensure that all those providing security services have been checked on a consistent basis. Rehabilitation of Offenders Act 1974
3.7 The Rehabilitation of Offenders Act 1974 (ROA) aims to strike a balance between giving offenders a chance to 3.8 Occupations which are excepted from the Act's provisions are tightly limited in order to safeguard the effectiveness of the Act. Exceptions to the Act have been made in the interests of :
The Criminal Records Bureau 3.9 In deciding the level of check considered necessary for those working in the private security industry the Government has taken into consideration the new certificates which will be available from the new Criminal Records Bureau (CRB) to be set up under Part V of the Police Act 1997. There will be three types of certificate available from the CRB
3.10 ECRCs will only be available to individuals and organisations in connection with applications for positions where they will be regularly caring for, training, supervising or being in sole charge of children or (potentially) vulnerable adults and for certain gaming and lottery licences. At the other end of the scale CCCs will only be available to individuals and will only contain details of unspent convictions. 3.11 During consultation and in discussion with the police, the industry and others there has been almost unanimous support for the private security industry to be exempt from the provisions of the ROA. Those working in the industry often have regular contact with the public, access to a great deal of sensitive information or are responsible for the protection of valuable goods, property or people. They are often in a unique position to prevent or commit crime. As the case studies in Chapter 1 show, individuals abuse the trust that is placed in them and the Government believes that the Authority should have access to an individual's full criminal record history before deciding whether to issue a licence. The Government therefore proposes that the private security industry will be made an exception to the provisions of the ROA in respect of licensing only. This means that the Authority will have access to CRC information. This will be done by making an Exceptions Order under the ROA, giving the Authority access to the full criminal record of an applicant. 3.12 Making the private security industry an exception to the ROA in respect of licensing only means that individuals will have to apply for a CRC from the CRB. A copy of the CRC will be sent to the Authority who will consider it before deciding whether to issue a licence. The CRC will not be available to potential employers. An exception which would allow employers access to unspent convictions could jeopardise the employment prospects of a substantial number of people. Latest available figures on the proportion of the population with criminal records, based on a "cohort" of people born in 1953, show that by the age of forty, 34% of men and 8% of women have a conviction for a standard list (broadly imprisonable) offence. Of these only 6% would have convictions which would remain unspent. Despite the fact that more recent convictions may not yet have become spent, of men born in 1973 only some 12% would have unspent convictions. The Government is aware that some companies do not employ individuals with even minor convictions which would appear to have no bearing on employment in the security industry. Allowing the Authority access to full criminal record information will ensure that the relevance of convictions and other considerations will be taken into account. Employers will still be able to require production of a CCC if they considered that necessary. 3.13 The Government did consider whether only certain sectors of the private security industry should be exempt from the provisions of the ROA. It concluded that this would be impractical. It would require the creation of a two-tier licensing system with different levels of checks and it may be difficult to decide if an individual required a full check or not as security personnel become more multi-functional. Criteria for Granting of a Licence 3.14 Before proceeding with a licence application the Authority will make every effort to establish that an applicant has declared his or her true identity by for example, requiring sight of an original document giving proof of identity such as a passport, driving licence or original birth certificate. 3.15 The precise details of the criteria for grant of a licence will be for the Authority to determine in consultation with interested parties but are likely to include:
The Licence Itself 3.16 Licences will be subject to a fee payable by the individual and renewable every three years. While the individual will have to apply for the licence there will be no bar on the cost of the licence being refunded to the individual by an employer. Licences will be subject to relevant conditions such as an obligation to notify the Authority if the holder changes address or is convicted of any offence during the currency of a licence. 3.17 The Authority will have the power to revoke a licence if the holder is convicted of a relevant offence during its currency or if the original application contained false information. The Authority will be obliged to give reasons, in writing, for the refusal or revocation of a licence. The Authority will also have the power to amend the conditions under which a licence is held. 3.18 The Authority will issue successful applicants with a physical licence. This is likely to be in the form of a plastic card which incorporates measures to prevent fraud such as a photograph of the applicant and a hologram. The details will be dependent on the best technology available when the Authority is established. The licence will include its expiry date. 3.19 The Authority will be expected to publicise the appearance of the card. Businesses and members of the public will be encouraged to ask for sight of the licence before allowing them onto their premises. Appeals 3.20 Refusal of a licence, or revocation of an existing one would prevent someone from being employed in the private security industry or from running a private security company. The Authority will have clear guidelines on the criteria for refusal or revocation and in most cases it is unlikely that there will be any dispute on a decision. Nevertheless, the Government considers that an individual should have a right of appeal against the decision of the Authority to refuse or revoke a licence. As the decision will affect an individual's earning potential the Government considers that the method of appeal should be relatively quick. 3.21 The Government has therefore decided to adopt the model appeal provisions under section 6 of the Deregulation and Contracting Out Act 1994 (The Deregulation (Model Appeal Provisions) Order 1996 SI 1996 No 1678). The model appeal mechanism was introduced because of complaints that traditional appeal processes were inconsistent, often cumbersome and confusing. The model appeal mechanism has been designed to expedite, simplify and reduce the costs to the parties of appeals against enforcement action. 3.22 The model appeal mechanism makes provision for:
3.23 If an individual is still dissatisfied with the decision of the tribunal he/she can appeal to the High Court on a point of law. New Offences 3.24 In order to ensure compliance with the new licensing structure the Government proposes the creation of the following new offences:
3.25 It is proposed that all these offences (except offering security services without being licensed) will be summary only with a maximum penalty of 6 months' imprisonment or a fine of the statutory maximum (£5,000) or both. It is proposed that offering security services without being licensed will be triable either way with a maximum penalty of five years' imprisonment on indictment or a fine or both. Enforcement 3.26 As noted above the Authority will publicise the arrangements for licensing individuals in the private security industry and make known the appearance of the licence issued by it. Businesses and members of the public will be encouraged to ask to see an individual's licence and be encouraged to contact the Authority if they have any suspicion about an individual or a company. 3.27 These measures in themselves should encourage widespread compliance with the new requirements and identification of non-compliance. However, to ensure compliance the Government proposes that the Authority will have the power to carry out spot checks on companies to ensure that all their employees are properly licensed. Managers and directors of companies will be required to include the name of their company as part of the licence application process. From this a database of companies employing security personnel will be generated by the Authority. 3.28 Spot checks could be intelligence-driven as a result of information received from the public, police, businesses or employers or on a random basis. Under the 'Inspected Companies' scheme (see Chapter 4) checking that employees are licensed is likely to form part of the inspection. Checks could be carried out by an Inspectorate created within the Authority or contracted out to a suitable existing Inspectorate if the Authority is satisfied that the work will be properly carried out. In most cases the inspectorate will prosecute offences if discovered through the course of their inspections. It is likely that the police will discover offences through the normal course of their work and these can be prosecuted by the Crown Prosecution Service. 3.29 Detailed enforcement procedures will be drawn up by the Authority to reflect the principles of the Enforcement Concordat published by Cabinet Office.
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