Non-offenders at risk of offending

A number of initiatives focus on individuals considered to be at risk of offending. These projects generally seek to support children who may for a variety of genuine reasons be regarded as being at risk of adopting a criminal lifestyle.

The agencies involved should seek the explicit consent of the individual concerned (or their parents or guardians in the case of a minor). Their full co-operation will normally be essential, if the interventions proposed in such schemes are ultimately to prove effective.

Some projects have indicated that there may be occasions, when it may not be appropriate to obtain explicit consent. This approach is discouraged and involves potentially complex legal issues. Depending on what is envisaged the Human Rights Act could prove to be a significant legal barrier if consent were not obtained.

This is especially true in considering whether any involuntary requirement were to be placed on the individual concerned. It is difficult to see in what circumstances such a requirement on a non-offender would ever be proportionate and any breach of the Human Rights Act would by necessity render disclosure unlawful.

Where a sound legal justification were to be identified for not seeking consent, possibly leading to an offer of a voluntary activity or curricular activity to a child at risk of offending, not normally available to others and compelling reasons existed for not seeking the consent of the individual or his parents/guardians beforehand, the agencies concerned would need to establish that legitimate grounds existed under schedules 2 and 3 of the Data Protection Act for disclosing that information.

This may be provided by Section 17 of the Crime & Disorder Act where there is a duty on specified agencies to do all that they reasonably can to reduce crime & disorder their areas. However, the exchange must be for a legitimate crime and disorder purpose and will normally involve a relevant authority, Youth Offending Team or Drug Action Team.

With the possible exception of schemes falling under the remit of section 29 (Data Protection Act exemptions), each agency would need to ensure that they have informed the individual concerned (or their parents and guardians) of the reason for disclosure and any other relevant information to render the disclosure fair.

This information should be provided either before the disclosure is made, at the time that disclosure is made or immediately following disclosure. This is to satisfy the fair processing requirement of the first data protection principle.

The Section 29 exemptions of the Data Protection Act may apply in these instances, where there is a sound basis for believing that the activity falls within the legal definition of crime prevention and where non-disclosure would be likely to prejudice this. This would mean that the agency involved would not have to:

• provide their identity

• the purpose for which the data is intended to be processed

• any other information which would otherwise be necessary in the particular circumstances, to make the processing fair.

Legal advice should be obtained to ensure the legitimacy of any activity of this nature and to verify whether an exchange of information would be appropriate.

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