ISE14/16-17

• In Hong Kong, the number of reported sexual offences averaged at about 2 200 cases each year during 2011-2015, accounting for about 3% of the total number of crime.^{1Legend symbol denoting The Police arrested on average 1 600 people each year for sexual offences such as rape and indecent assault during the period 2011-2015. The Correctional Services Department once estimated that around 6% of sex offenders would commit similar crime again within three years of their release. There has been no update on the rate in recent years. The Police also do not publish any figure about child sex offences.} As these crimes may have long-lasting effect on the victims, especially children, there have been calls for reducing the risks of ex-sex offenders from taking up child-related jobs, and providing employers with access to information about the related conviction history of their prospective employees. The Government estimated that there were about 250 000 people engaging in work with frequent contact with children or other vulnerable persons.^{2Legend symbol denoting See Children's Forum (2015a).}
• Since December 2011, persons seeking child-related jobs could apply to the Police for disclosing their sexual offence records, if any, to their prospective employers.^{3Legend symbol denoting Although the Police may issue a Certificate of No Criminal Record, such document could only be issued for the purposes of emigration and child adoption. Yet, an individual can still request the Police to provide his or her criminal conviction data held by the Police under section 18(1) of the Personal Data (Privacy) Ordinance (Cap. 486).} While this measure was generally supported by Members, there have been concerns over the adequacy of the measure for child protection especially immediately after an occurrence of child-related sexual offence in recent years.^{4Legend symbol denoting Members had raised their concerns about the Sexual Conviction Record Check ("SCRC") on several occasions. A motion debate on the proposal was moved at a Council meeting of 10 March 2010. The Panel on Security also discussed SCRC in 2010 and the SCRC implementation progress in 2013 and 2014. A question about the application of SCRC to home for people with disability was also raised at the Council meeting of 16 November 2016.} This issue of Essentials reviews the operation of such a disclosure system in Hong Kong, followed by a discussion of the respective disclosure system in the United Kingdom ("UK") which is regarded as comprehensive for child protection.

Recent developments on sexual offence records disclosure in Hong Kong

• In February 2010, the Law Reform Commission ("LRC") released its report entitled Sexual offences records checks for child-related works: interim proposals, in response to a spate of sex crimes involving child victims and concerns of some judges that ex-sex offenders were not subject to any registration requirement.^{5Legend symbol denoting Places like the UK, Canada, Australia and New Zealand have set up and kept a sex offender registry. Offenders are required to register after release and keep the authority informed of their personal information like address, and even travel plans.} Instead of proposing a mandatory sex offender registry accessible to the general public, LRC proposed an administrative system under which sexual offence records would be checked to assist employers in making recruitment decisions.
• In December 2011, the Security Bureau took on board the proposal and rolled out the Sexual Conviction Record Check ("SCRC") run by the Police for protection of children and mentally incapacitated persons ("MIPs")^{6Legend symbol denoting MIPs are defined by section 117 of the Crimes Ordinance (Cap. 200).}. Employers offering child or MIP-related jobs could have access to sexual offence records of their prospective employees, subject to the following conditions:
  
  

  (a)	Request for SCRC made by employees: Application for SCRC must be made by the prospective employees themselves, if they agree to the employer's request for such a check;
  (b)	Jobs eligible for SCRC: SCRC covers child or MIP-related work with duties involving frequent or regular contact with children or MIPs. While the Police have not produced a full list of child or MIP-related job positions, they have cited teachers, social workers, healthcare workers, librarians, school bus drivers and assistants, cleaners as examples of such sensitive positions;
  (c)	Coverage of sexual offences: SCRC covers over 30 designated sexual offences under the Crimes Ordinance (Cap. 200)7Legend symbol denoting Sections 47-126 of the Crimes Ordinance (Cap. 200). and relevant laws, mostly for the protection of children; and
  (d)	Disclosure content and format: SCRC provides a simple disclosure of whether a prospective employee has such criminal record without providing any conviction details through a password-protected auto-telephone answering device to the employer only.

• Between December 2011 and February 2015, about 120 000 people applied for SCRC, indicating a strong demand from employers of gaining information from their prospective employees. As only six out of these applications had relevant records, the Government claimed that SCRC was effective in discouraging ex-sex offenders from taking up child-related work.
• However, a few widely reported incidents of sexual assaults by persons in child or MIP-related work reignited concerns over SCRC's design and operation.^{8Legend symbol denoting Concerns were recently raised after the arrest of a private tutor with a sexual offence record for an alleged indecent assault of an underage girl, and a person in charge of a private care home for persons with disability for alleged indecent assault in late 2016.} The key concerns are (a) the types of jobs covered by SCRC are too narrow, excluding volunteers, private tutors at home and existing employees already under employment; (b) access to SCRC is not extended to parents employing private tutors for their children; (c) lack of disclosure of details about the conviction, as the current system just provides a Yes/No answer; and (d) SCRC is an administrative scheme set up without passing any legislation.
• To ease the concerns, the Police have widened SCRC's coverage to those existing employees seeking contract renewal in private tutorial centres and institutions offering interest classes from April 2015 onwards. While the Police are seeking legal advice over further extension of SCRC to staff of residential care homes for persons with disabilities, they have remained cautious of calls for broadening the coverage to private tutors and volunteers, citing possible abuses and negative implications for rehabilitation of ex-sex offenders.

Disclosure of sexual offence records in the United Kingdom

• Over the past two decades, the UK has developed a sophisticated system to manage the risks sex offenders posed to children, following a number of widely publicized crimes with child victims. These cases have resulted in growing public and political pressure for disclosure of more information about ex-sex offenders and led to policy reviews by the government.^{9Legend symbol denoting The murders of two girls by a school caretaker in 2002 prompted an inquiry into child protection in 2003, resulting in the enactment of the Safeguarding Vulnerable Groups Act 2006. Among others, the law aimed to set up a central agency responsible for all vetting and registering of people working with children and vulnerable adults. However, the registration proposal was dropped after a further review by the UK government.} Specifically, the Child Sex Offender Disclosure scheme ("CSOD"), which was rolled out across all England and Wales police forces in 2011, allows people who care for children to apply to find out if someone has a record for child sexual offences. In general, the UK's information disclosure system comprises three key components as outlined below.
• Sex offender registry: Under the Sex Offenders Act effective since 1997, it is mandatory for sex offenders to register and notify the local police their personal details and any subsequent changes to facilitate police monitoring.^{10Legend symbol denoting The original law endorsed in 1997 was repealed and replaced by the Sexual Offences Act 2003.} While the general public cannot have access to the registry, the local police are empowered to disclose necessary information about the registered offenders to community leaders like school principals if they identify risks of serious harm to children in the community.^{11Legend symbol denoting According to section 372A of the Criminal Justice Act 2003, through the Multi-Agency Public Protection Arrangement, such disclosure can be made by the responsible authority such as the police and probation agency.}
• Criminal record checks: The UK government keeps a "barred list", prohibiting certain people from taking up child-related work. By law, convicted child sex offenders are automatically included in the list. Checking against the list can be done through the criminal record check agency known as Disclosure and Barring Services ("DBS").^{12Legend symbol denoting DBS is an "executive non-departmental public body" formerly comprising the Criminal Record Bureau (created under the Police Act 1997) and Independent Safeguarding Authority. Its duty is to help employers make safe recruitment decisions and ensure that no unsuitable people will work with vulnerable groups. It handled 4.2 million applications for criminal record certificate in 2015.} A job candidate cannot apply for the check directly and must do so upon request of and through the prospective employer registered with DBS. However, a written certificate will be issued to the candidate who is then required to show it to the employer.^{13Legend symbol denoting DBS also offers standard and enhanced checks (with or without barred-lists checks). The enhanced checks with barred-lists checks are for "regulated activity with children" as defined by the Safeguarding Vulnerable Group Act 2006. With the consent from the candidate given a conditional job offer, the employer will give a form to the employee to fill in and then the employer will countersign the filled form and hand it back to DBS for processing. Check results are presented in a certificate, giving details of every relevant matter relating to the applicant (the prospective employee) as recorded in the "central records" held by the police.} Compared to SCRC in Hong Kong, a DBS check provides a wider work coverage (e.g. including volunteer works and unsupervised teaching, training and instructing, but excluding private tutors) and provides more details, such as the offences and dates of offences, to employers.
• Child Sex Offender Disclosure Scheme: CSOD primarily targets child sex offences and operates concurrently with the above two disclosure channels.^{14Legend symbol denoting CSOD was regarded as a government response to the public outcry over the abduction and the murder of 8-year-old Sarah Payne in July 2000 by a paedophile. The case sparked a public campaign calling for opening public access to the sex offender registry. CSOD was one of the recommendations made in the report of the Review of the Protection of Children from Sex Offenders in June 2007. In 2008, a pilot CSOD scheme was introduced in four police districts.} As an administrative scheme run by the local police forces, CSOD has the following major features:
  
  

  (a)	Wider user coverage: The scheme allows parents, caretakers, guardians or any third party like a neighbour or friend, to ask the local police for information about any individuals having contact with a child or children under 18;
  (b)	Risk-based and case-by-case assessment: The police then make use of information from their own intelligence and other relevant agencies to make a detailed assessment on the risks posed to the children on a case by case basis;
  (c)	Controlled disclosure to the right persons: In case where the police find the concerns of the requesting party legitimate, i.e. the person in question indeed poses a risk to the child concerned, the police are expected to make a disclosure. Such disclosure will be made face to face to the persons best placed to protect the children concerned, such as parents, who may not necessarily be the party requesting the disclosure. The police will decide the extent of information disclosed in accordance with their risk assessment without the requirement of obtaining prior consent of the person in question before disclosure; and
  (d)	Safeguard to protect privacy: To address privacy concerns, all information released is confidential. Those who receive the information will be warned about it in advance and must sign an undertaking. The police may take prosecution against any misuse of information disclosed.

• CSOD is widely seen as a measured approach to ease public pressure over fully opening up the sex offender registry to the public. The UK government is also convinced that permitting full public access to the sex offender registry could be counterproductive because it may drive those registered into underground to evade monitoring. In practice, CSOD helps enhance child protection by allowing a two-way exchange of information between the concerned parties such as between parents and the police, which does not exist under DBS. Moreover, it may help fill the intelligence gap of the police.
• That said, CSOD may have privacy implications as a person's previous conviction is supposed to be confidential personal data. To address these concerns, the Home Office conducted a privacy impact assessment in 2010 and set out two key principles about any disclosure. First, there must be a pressing need to disclose the information for the protection of the child concerned. Secondly, it must be "necessary and proportionate" to the risks posed to the child. For instance, in applying the second principle, the police may not need to disclose in all cases the precise details of the offence for parents to be able to take steps to protect the child.
• CSOD appears to be effective in risk identification. Among the 900 applications received in the first year of implementation, 160 disclosures were made for applications where child sexual offence records were found, while another 58 disclosures or 2% were related to other offences like domestic violence which the police forces deemed relevant for the purpose of minimizing the risks to the children. By end-2014, there were a total of 6 200 applications, with 877 or 16% disclosures. The UK government concluded that CSOD was a success, as there was no sign of breach of confidentiality. There was also no evidence that it drove registered sex offenders into underground. In spite of CSOD, the number of reported sexual offences against children under 16 in England has increased in recent years, possibly because of more public willingness to report such crimes amidst increased public awareness.^{15Legend symbol denoting The offence rate of sexual offence against children under 16 stood at 36.3 per 10 000 children in 2015-2016, compared with the range of 14.7 to 17.4 before 2013-2014. According to the Office of National Statistics, the sharp rise in recent years were mainly due to improved police recording of sexual offence and increasing willingness to report the crime otherwise underreported in the past.}

Prepared by CHEUNG Chi-fai
Research Office
Information Services Division
Legislative Council Secretariat
31 July 2017