Compromising justice by enhancing disclosure. The dilemma of those who have a non-conviction police record who choose to work with the vulnerable
Academic Paper 2018 33 Pages
A Propensity To Be Suspected Or Complained About To The Police
Factors That Lead To Involvement With The Criminal Justice System Other Than Criminal Behaviour
How The ECRD Regime Undermines the Criminal Justice Process
Relying On The QAF and Statutory Guidance for Chief Constables
The Proportionality Test
The Breach Of Article 8 The Human Rights Act
Pressure Put on The Unemployed To Disclose non-conviction information and undergo Enhanced Disclosure Checks
The Expectation That The Applicant Discloses Non-Conviction Allegations In Advance of The Police`s Decision Regarding Disclosure
Other Problems With Consenting To The Intrusion Into Private Life
The Psychologically Damaging Effect Of The Stigma Associated With Disclosed Information
The Uncertain Future For The Employee
A Lack Of Justification In The Literature
Convictions Avoiding Disclosure While `Inappropriateness` Is Still Disclosed
Compromising Justice By Enhancing Disclosure: The Dilemma Of Those Who Have A Non-conviction Police Record Who Choose To Work With The Vulnerable
This paper provides an alternative perspective of the use of non-conviction information1 through the enhanced criminal records disclosure (ECRD) regime under Part V The Police Act 1997 for employment in regulated activity which involves close contact with children and vulnerable adults, from the position of the individual about whom non-conviction information is held. I begin by considering some of the factors which contribute to the susceptibility of individuals to become involved with the criminal justice process resulting in a local police record being retained without a clear indication of morally culpable behaviour and the plausibility of reliably identifying trends of behaviour relevant to concerns of risk from the collation of this information. I examine the effect that the potential for disclosure of this information via the ECRD regime has on the operation of the criminal justice process, the tension between the suspected individual exercising his right to silence and the implications for doing so for his employability within regulated activity. I then consider to what extent he is assisted by the provision of guidance to make the decision whether to undergo an enhanced level check which risks the adverse consequences of the disclosure of non-conviction information, as well as the impact of the right to respect for the private lives of those individuals in circumstances where they do and where they do not consent to an enhanced level check. I examine the rationale contained in the literature which endorses the use of non-conviction information within the ECRD regime and consider however this may attempt to justify prejudicing the applicant on the basis of unproven or non-criminal allegations . Finally I review the recent case of R (on the application of SD) v Chief Constable of North Yorkshire  EWCA Civ 1838 where the suspicion of inappropriate behaviour was considered a justification for disclosure and how the practice of disclosing non-conviction information fails to strike a fair balance between protecting the vulnerable and the right to respect for the applicant`s private life under Article 8 The Human Rights Act 1998.
A Propensity To Be Suspected Or Complained About To The Police
In the course of the average person`s life it is not unlikely that he will have raised the suspicions of the police at some level by the time he is an adult seeking employment or subsequently at some stage in his adult working life whether he has been stopped by police whilst going about his business in public, or reported to the police for some alleged wrong doing within a dispute or became implicated in the involvement of crime by word of mouth on account of his associates or habits. The use of the intelligence gathered from these encounters is recorded by the local police force and can be produced in an enhanced criminal record certificate (ECRC) as “other relevant information disclosed at the chief police officer`s discretion” relating to a prescribed purpose of the position applied for as set out in regulation 5A of the Police Act 1997 (Criminal Records) Regulations 2002. Not only can allegations where guilt has not been established by a trial verdict nor an admission has resulted in a caution still be disclosed, but information disclosed in this section may not even amount to the suspicion of criminal behaviour providing the chief officer reasonably believes it to be relevant to the prescribed purpose and ought to be included in the certificate (s113B(4) The Police Act 1997). The assessment that this information merits disclosure and the detail of the disclosure itself may fail to take account of other factors that contribute to an individual`s propensity to come to the attention of the police or become involved in the criminal justice process for matters other than criminal behaviour, or for matters that the police would not usually consider constructing a case to be charged. These other contributory factors if considered, may mean that the information disclosed has less bearing if any, on questions of suitability for the role applied for.
It may be counter argued that it does not matter that other factors contribute to suspicion because information should only be disclosed if it survives the tests of relevance, substantiation and proportionality in the police`s internal guidance known as the quality assurance framework (QAF) and is in accordance with the principles outlined in the chief officer`s statutory disclosure guidance which discourages disclosure of information regarding merely “poor behaviour “. 2 In principle each individual should be on an equal footing when it comes to the decision to disclose police intelligence and the avoidance of disclosure should be determined by their habit of pursuing a law-abiding lifestyle. However when certain types of people are more predisposed to the gathering of police intelligence which casts suspicion on their suitability for employment despite it not relating to a proven breach of the law they are accordingly more at risk of the disclosure of such information which amounts to a punitive consequence of simply becoming involved with the criminal justice process in a way that disadvantages certain people within the job market and promotes social inequality.
Public perception generated by the news and the media are hugely influential in creating a climate of suspicion which has become so prevalent that many men have expressed being unwilling to assist a needy child to avoid accusations of paedophilia3. This is further propagated by official bodies whose role in ensuring the safety of children or vulnerable adults promotes proactive vigilance and reporting from people in their capacity as employees and members of the public, such as the NSPCC who admit that reports of sexual abuse dramatically increased following the media revelations of the Jimmy Savile scandal.4 and local authority safeguarding boards who go as far as telling the general public that their assistance is needed to report anything “that does not feel right”.5 In an era of heightened suspicion we are being encouraged that reporting our suspicions is the responsible course of action which rightly or wrongly, necessarily leads to greater numbers of people wrongly suspected of crime or of being unsuitable to work with children and vulnerable adults. Highly publicised historical cases of abuse which occurred within an era of far less developed legal protections for children and vulnerable adults along with less enlightened social values regarding their welfare reinforce a misconception that our contemporary care organisations are inadequate to prevent abusers from operating within them under the cover of their occupation, leading to an alarmist response that in protecting the vulnerable from such harm one can “never be too careful” without due regard for the repercussions of setting the standard for protection measures so high.
Factors That Lead To Involvement With The Criminal Justice System Other Than Criminal Behaviour
The degree of one`s susceptibility to become the subject of an investigation by the police or accused of a crime is influenced by various factors other than one`s actual involvement in crime, including one`s ethnicity, family background or associates, socio-economic status, employment, gender, social habits, traits of character and even general appearance.
The Equality and Human Rights Commission`s review of the use of stop and search powers within England and Wales published in April 2016 showed that overall black people are six times as likely as white people to be stopped and searched by Police and asian people twice as likely as white people.6 It was further stated that “The evidence points to racial discrimination being a significant reason why black and Asian people are more likely to be stopped and searched than white people.” 7 rather than any significant differences in offending trends between the respective ethnic groups. Individuals who are questioned on the street, arrested with no further action, charged with the accusation being later dropped, or acquitted, and their associates whose company they were in at the time of the police intervention, may become similarly suspected. This means as a result of their ethnicity there is greater likelihood of non-conviction information being produced which is subsequently available to be disclosed despite that no crime may have taken place.
Those whose family are known or believed by the Police, to have a history of involvement in crime are at risk of being the target of investigations which would not otherwise incur any suspicion of them.8 It may be that reasonable suspicion or evidence of crime is then discovered by the police or simply that the suspects by association were unable to allay police suspicions or chose not to co-operate with an investigation. However, by virtue of the involuntary family relationships certain people are more susceptible to involvement with the criminal justice system and the producing of non-conviction information which risks being disclosed.
An unconscious bias by the police regarding the socio-economic status of suspects also risks creating disparity in the producing of non-conviction information.9 A minor misdemeanour may be met with a discretionary blind eye or informal reprimand in the case of a suspect who is perceived to belong to a higher socio-economic group whereas such leniency is less likely to be afforded to a suspect of whom a lower standard of behaviour is expected and who is considered more in need of facing the consequences of the justice system. Similarly, the police officer assuming that the suspect of a higher socio-economic status is more likely to be honest, may accept an excuse provided in response to his enquiry at face value in circumstances when he would be less affording of a suspect of lower socio-economic status. The outcome again is that according to the individual`s socio economic standing he is at greater risk of non-conviction information being produced and subsequently disclosed.
Those who work in certain employment sectors especially those within regulated activity, working with vulnerable adults and children are more susceptible to accusations of abuse. This is so prevalent that many supported living care services and children`s care homes have imposed care plans which aim to safeguard staff against the risk of false allegations by stipulating that two staff members must be present with a service user at all times so that a witness is permanently available. Within supported living services it is normal practice that male staff do not provide personal care, for example with bathing, dressing and toileting, to the female service users whereas no such restriction is practiced regarding the female staff supporting male service users in spite of all staff having undergone enhanced level criminal records checks as a pre-requisite for employment. Other organisations practice a policy of no male staff working with female service users in any context. This all speaks to an allegation culture which particularly prejudices men and the consequent need of care organisations to mitigate the risk of false allegations.
Certain personality types are clearly more prone to becoming involved with the criminal justice system on account of their traits of character for reasons which would not secure a criminal conviction against them. The extroverts lacking certain inhibitions may find themselves unwittingly transgressing social boundaries with other more sensitive members of society, resulting in allegations relating to public order offences or harassment. Those whose personality is influenced by a different cultural background especially which has different norms of social interaction relating to personal space and being tactile with those who we socially engage are also more susceptible. At the further end of the spectrum people with learning disabilities and psychiatric conditions challenged by the task of living independently and integrating into society are further at risk of such allegations in circumstances where the concern caused was completely unintended. Ironically when the consequent police involvement leads to the record of this behaviour liable to be disclosed, the disclosure system whose purpose is to provide protection for the vulnerable poses as a risk of its own to them.10
Those who engage in unusual behaviour or behaviour which may be morally objectionable to others despite being lawful , are at risk of disclosure of their private information as unrealistic expectations of predicting future offending are made of the police as in A, R (on the application of) v B (2010) EWHC 2361 (Admin) 11 when the applicant`s house had been raided by the police due to an unrelated matter and upon discovering photographs of short-skirted women in public places and his interest in pornography, his private lawful sexual practices were unlawfully disclosed.
On an individual level those who are believed to have a criminal history or to have had an allegation made against them before are more prone to be suspected of crime and more vulnerable to malicious allegations by an accuser relying on the enhanced credibility due to the suspect`s past . Those who tend to have tempestuous personal relationships are particularly likely to fall foul of allegations that may be based purely on malice following a relationship breakdown or can have an ulterior motive which benefits the accuser for example, allegations of domestic violence made in order to secure public funding in family law cases.12
In the context of an alcohol-fuelled evening out the rules of social engagement are generally viewed to be different at least by those willing participants in the same leisure. However the local police intelligence relating to these activities regarding matters where there would not usually be a high prospect of securing a conviction if even any public interest in a prosecution may give a very different impression of the individual`s character and suitability for the prescribed purpose of the position applied for within regulated activity. Those under the influence of alcohol yet not causing such a public disturbance as to be regarded as drunk and disorderly,13 who may behave conspicuously out of character and whose intentions are misconstrued, are at a greater risk of becoming involved with the police on suspicion of criminal behaviour. For example, tactless flirtation may be perceived as sexual harassment, an ill-conceived joke may be interpreted an expression of discriminatory hate crime or innocent individuals may become implicated in suspected public disorder, criminal damage or theft offences. While the law does regard those who behave unlawfully without intending to cause harm as being blameworthy due to their recklessness in becoming so intoxicated in the first place (DPP v Majewski (1977) 2 WLR 623) this is the position in relation to proven offences committed under the influence of alcohol not merely complaints or suspected offences. In addition allegations of specific intent offences that if tried would stand no prospect of conviction due to the suspect`s reckless state of mind, for example causing grievous bodily harm under s18 The Offences Against The Person Act 1861, may appear when disclosed, to have been crimes that the individual was guilty of but avoided conviction which attributes to the suspect a degree of discreditable behaviour which he was never morally culpable for.
The use of visual information sharing schemes by the retail and pub industries in co-operation with the police and local authorities such as Pubwatch and Shopwatch, and the informal use of mobile phone applications such as Wattsapp which utilise the transfer of photographs and video footage between users has greatly influenced the landscape of police investigation and the propensity to become suspected of crime.
The notices on the windows of public houses warn that the premises operate national pub watch as follows “Antisocial behaviour such as aggressive behaviour towards staff and customers, sale or use of drugs, threatening or abusive behaviour, damage on or near the premises, theft on or near the premises, inappropriate behaviour, will result in your photograph being circulated and being banned from all licenced premises in the area. We now have a database, Darlington Pubwatch, National Pubwatch.”14 From this notice it is concerning that there is overt conflation of criminal behaviour with undesirable but not necessarily unlawful behaviour resulting in the same outcome of the suspect`s image being disseminated and held on a database to effect a bar on them from using local licenced premises. While private venues have autonomy to refuse service to anyone they choose providing they do not unlawfully discriminate under the Equality Act 2010 it is clear that there is huge scope for subjective judgement regarding the inappropriateness of behaviour and that such a system of `black-listing` people from drinking venues is susceptible to social prejudice, malicious complaints and the stigmatising of the less popular or those with poorer social skills. There are few venues conceivably less conducive to the provision of reliable police intelligence than a public house whose staff are unlikely to have a high degree of legal understanding to discern objectionable from unlawful behaviour, who will be influenced by the complaints of other customers whose judgement is liable to be impaired through alcohol consumption. Yet these staff members will be informing a database and local police intelligence about the propensity of people`s criminal or antisocial behaviour in certain circumstances where they may be serving to do no more than legitimising gossip or penalising a party to a conflict who did not behave unlawfully within their venue who they were less favourable to or familiar with. While the Pubwatch scheme is registered with the Data Commissioner and aims to comply with its obligations under The Data Protection Act 1998 regarding the use of data, its members are free to create their own protocol regarding the sharing of data and the lack of a proven or even suspected crime being committed by an individual is no barrier to their inclusion on the database and the sharing of their image. As the Pubwatch scheme is so open to misinforming the police as to an individual`s bad character or propensity to commit crime, even if the information recorded itself is not included within an enhanced disclosure it may influence the decision for a disclosure of other non-conviction information to be disclosed having contributed to the police`s perception of the applicant as someone suspected to have been involved in criminal or antisocial behaviour unbefitting of those considered suitable to work with the vulnerable.
The Shopwatch scheme whereby local retail outlets retain and disseminate information and photographic images of known and suspected shoplifters is prone to similar flaws as the Pubwatch scheme. The lumping together of known and merely suspected shoplifters as well as those considered to have been involved in antisocial behaviour prejudices those who have not been established as guilty of crime but nonetheless become perceived as offenders by retail and security staff as well as police. Security and retail personnel who have observed customers behaving in a way they regard as suspicious, whose judgement is susceptible to their opinion regarding the customers` general appearance, are in the habit of photographing customers and sharing these images via mobile phone applications with police and other security personnel for the purpose of preventing them from successfully stealing in another local retail outlet. While there has been limited intervention from retailers who have instructed their staff to refrain from using WhatsApp groups to share images of suspected criminals within their store15 there is nothing to prevent the continued informal use of images and information sharing between retail and security staff. This practice is susceptible to social prejudice and malicious reporting as well as the inevitability of those who have not conducted themselves unlawfully being brought to the attention of the police and becoming a focus of their attention as suspected criminals.
Given the above alternative explanations for those with a propensity to have their behaviour reported to the police or suspected of crime it may also be argued that there is a greater likelihood that a person with such a propensity will have numerous items of soft intelligence held locally by the police than separate individuals have the same number of pieces of intelligence collectively. For example it is more likely that person X with a propensity to be suspected of crime despite being innocent, has two pieces of soft intelligence held about him than person Y and person Z, who have no such propensity have one piece each of soft intelligence known to police. What may appear on the face of the intelligence to be an emergence of a pattern may actually be evidence of a propensity to be suspected rather than a propensity to commit crime. In this way the disclosure of non-conviction information is self-justifying and self-perpetuating. The incidental factors which contribute to the initial suspicions of the police lead to investigation or further involvement in the criminal justice process and eventual disclosure of allegations which are either non-criminal, never proven or never even subjected to a trial. Effectively the applicant is prejudiced at the beginning of the process in his involvement with the criminal justice system and then at the end of the process, following the end of the investigation or prosecution without a conviction, when a decision to disclose is nonetheless made. Such a disclosure may be based more on the applicant`s identity or pursuance of lawful activity than on a reasonable suspicion of criminal behaviour or behaviour relevant to considerations of risk within work with the vulnerable. It may be viewed that social prejudice will always exist and there is no practical way of removing it without unduly fettering police discretion to investigate crime and inhibiting the enforcement of the law. However this point does not seem to stretch to a justification for disclosure of police intelligence that has been untried or unproven. Moreover the disclosure of information which does not constitute a suspected crime is untenable with the principle that there should be no punishment without a breach of the law.16
Inevitably, in certain circumstances the intelligence disclosed will relate to behaviour which could have led to conviction had there been sufficient evidence but these cases are not discernible on the basis of untried evidence or evidence which did not overcome the burden of proof at trial. Even when the suspect is correctly implicated for involvement in criminal behaviour, without a specific charge being brought and upheld at trial it is not possible to ascribe to him a proportionate level of moral culpability or to accurately determine questions of suitability for regulated activity based on the disclosed information. In circumstances where there appears to be evidence of a criminal modus operandi or factual similarities between allegations which has sufficient probative force to be regarded as greater than co-incidental, the non-conviction information can be used in prosecutions through the principle of cross admissibility under DPP v Boardman (1975) AC 457, or It may be admissible as bad character evidence under s101 The Criminal Justice Act 2003. This enables Police to use their intelligence to target and investigate such suspected criminals with the aim of achieving the prevention of offending behaviour through the judicial process and sentencing rather than through employment vetting.
How The ECRD Regime Undermines the Criminal Justice Process
Article 6(3) The Human Rights Act 1998 lays out the minimum procedural rights of the citizen charged of a criminal offence which aim to prevent an unfair trial 17 but these rights do little to protect him from disclosure of an allegation for which he was merely charged that does not result in conviction and do nothing to protect him from disclosure of an allegation that did not reach the charge stage of the criminal justice process despite that the disclosure of the information is likely to have largely the same outcome as the disclosure of a conviction, for purposes of his employment application.18 Instead he has to rely on the statutory disclosure guidance principles and the QAF with the possibility of being offered the opportunity by the police to make a representation regarding the information considered for disclosure, as his protections against an adverse disclosure of non-conviction information. It is little consolation that in the event of disclosure he has the right to appeal to the Independent Monitor for a review of the chief officer`s compliance with the statutory disclosure guidance and the QAF when the decision to disclose is within the chief officer`s discretion, following which his final resort is an appeal for judicial review of the decision.
At the pre-arrest stage although the individual questioned by the police has no obligation to co-operate with them (Rice v Connolly  2 All ER 649) he then faces the prospect of the record of the police investigation and his refusal to co-operate subsequently disclosed within an enhanced disclosure. The effect of this can be that an individual against whom there were not even grounds for arrest faces potentially punitive consequences by an employer`s view that his refusal to answer police questioning was an effort to conceal some wrong doing. In the case of an innocent suspect who works within a regulated activity and is subject to an enhanced level disclosure, being mindful of the need to allay all suspicions against him to protect his employability, he may be enticed to co-operate with the investigation when he otherwise would not have, which leads to the producing of circumstantial evidence sufficient to satisfy the evidential burden to proceed to further stages of the criminal justice process including trial and a wrongful conviction. If he is not convicted his waiving of his right to silence also risks inadvertently substantiating the allegation with circumstantial evidence for the purpose of a subsequent enhanced level check.
At the arrest stage, without the protection of Article 6(3)(b) the suspect is not given time to prepare a defence against the allegation which he will be afforded if it proceeds to trial. The police interview which is approached as an evidence-gathering exercise is a very poor substitute for a fair hearing but may be the only one that has been offered to the suspect when the allegation is being considered for disclosure. The suspect`s right to silence has been watered down due to the possibility of an adverse inference being drawn from his silence under section 34 to section 37 The Criminal Justice and Public Order Act 1994 if the allegation is charged and leads to trial. However the possibility of an adverse inference as to the suspect`s guilt is not limited to the prosecution process itself as the same inference may be made for the purpose of employment vetting when the allegation and the suspect`s refusal to answer questions is later disclosed within a ECRC. Again, the perception of employers is likely to be that if the applicant has no wrong-doing to hide he should have been willing to answer questions in the interview. This creates the further possibility that the innocent suspect mindful of the prospect of the matter appearing in an ECRC will answer questions that produce circumstantial evidence sufficient to support his prosecution, leading to greater substantiation of the allegation for purposes of a subsequent enhanced disclosure check and ultimately the possibility of a wrongful conviction. Although the suspect has the right to legal advice at the interview under section 6 The Police and Criminal Evidence Act 1982- Code C and in compliance with Article 6(3)(c), the advice he receives concerns the matter of defending the criminal allegation which takes precedence over any speculative concerns about the prospect of non-conviction information subsequently disclosed within employment vetting.
The charged person has the right “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him” (Article 6(3)(d) HRA 1998). However at no stage of the criminal investigation will the suspect be allowed to interrogate witnesses or appoint someone else to. He cannot compel the attendance or co-operation of witnesses or instruct the police in the line of questioning they will pursue. These requirements can only be met within the process of a trial hearing, in the absence of which, the evidence against him cannot be shown to meet a standard of proof which justifies the implication of his guilt through an enhanced disclosure.
If the allegation reaches the trial stage, the ECRD regime impinges on the fairness of the trial process itself because the accused not only has to be concerned with being acquitted but the manner of his acquittal. The inclusion of an acquittal in an ECRC is particularly damaging because it indicates to the employer that the merits of the allegation justified the hearing of a trial. If the accused is concerned about the appearance of an acquittal obtained `on a technicality` or of his being bound over as an alternative to undergoing the full process of prosecution and trial he may take a higher risk approach in his defence such as refusing to be bound over or submitting to cross examination against the recommendation of Counsel leading to an increased possibility of wrongful conviction.
The ECRD regime continues to interfere with justice following the end of an investigation, prosecution or trial and there is an inherent conflict between the opportunity of making representation and the right against self-incrimination. The offer of the opportunity to make representation which should be considered under the “MP7a-Disclosure/Referral Rationale Consideration” in the QAF and under Principle 4 The Chief Of Police Officer`s Statutory Guidance, is discretionary and can be made in spite of an advance decision that the information will be disclosed anyway simply as a demonstration of procedural fairness especially for the avoidance of litigation19. However the opportunity when extended, is clearly an inadequate substitute for a fair trial hearing. In the case of an allegation which did not reach trial It is to ask the applicant to tell his version of events or to mitigate the poor impression the information portrays of him without the benefit of a legal defence being argued within a fair hearing despite that the information proposed for disclosure has been constructed in preparation of a prosecution against him by a method that would prejudice the applicant`s claim to be innocent.20 In the case of an acquittal, in the absence of an explanation as to why the information is relevant to the applicant`s suitability for the prescribed purpose of the regulated activity other than that he may have in fact been guilty, the disclosure system effectively operates to imply that there has been a wrongful acquittal. Furthermore, the applicant who is offered the opportunity to make representation knows that the information held by the police will most likely be disclosed without him even being able to influence its content unless he makes representation. His right to protection against self-incrimination has been circumvented because his silence will result in the disclosure of information that is likely to have largely the same effect as a conviction for the purpose of his employment 18. The loss of this right again means that he risks disclosing circumstantial information sufficient to support a prosecution against him or to further substantiate the allegation being considered for disclosure. His having to re-visit the allegation to defend his character also encroaches upon his right to respect for private life under Article 8 The Human Rights Act 1998 as an allegation, even if it was of a crime, for which there was no conviction resulting in a rehabilitation period before it became spent, should be regarded as having receded into the applicant`s past 21. He is prevented from being able to rule out the prospect of subsequent restrictions to his employability and reputational harm as a result of his making representation, or as a result of disclosure.
Principle 4 of the statutory disclosure guidance states that the chief officer should consider affording the applicant the opportunity to make representation by asking inter alia “has the applicant ever had a fair opportunity to answer an allegation?” (Paragraph 26). There appears to be no regard for the unfairness of the implied expectation that the applicant should have complied with the police by volunteering information that potentially could have resulted in his wrongful conviction. It follows that the applicant who exercised his right to remain silent when questioned before or during a police interview adds to the risk that he will not even be allowed to offer any information in his defence before a decision to disclose the information is made against him.
It cannot be denied that the practice of disclosing non-conviction information distorts the purpose and efficacy of the criminal justice process. It is expected that employers will logically view that the credibility of an allegation correlates to the stage of the criminal justice process that it reached and police making the decision regarding disclosure are likely to take the same view. However this approach is over-simplistic and does not account for factors other than the merits of the allegation such as politically sensitive areas of crime in which allegations are more vigorously pursued for example in domestic violence, hate crime and sexual offences. 22 Accordingly it may be viewed that there is incentive from a crime prevention perspective, for the police and crown prosecution service to pursue allegations to a later stage even when it is not considered that there is a realistic prospect of conviction, as the greater substantiation the better the prospect of inhibiting the suspect`s employment in regulated activity, through the disclosure of it as non-conviction information. Perversely, the avoidance of the expense and the saving of resources to prosecution, prison and probation services as a result of less trials and convictions while still retaining the ability of the police to disclose allegations when vetting for positions of employment with the vulnerable may be viewed as a better outcome, particularly in the case of offenders who are unlikely to be deterred from re-offending following the sentences they receive at trial.
It is all too convenient for the police to be able to make a disclosure having claimed to have taken reasonable steps to ascertain the facts regarding non conviction information without the re-opening of an investigation and an attempted prosecution, especially in the cases of offences listed under Part 1 of Schedule 5 The Criminal Justice Act 2003 which are not prevented from re-trial under the rule against double jeopardy following new and compelling evidence which was not adduced in the proceedings under which the individual was acquitted (s78 Criminal Justice Act 2003). The allegation is disclosed because the chief of police regards that it can be reasonably believed to be true in spite of reasons to doubt this due to evidence being untried or the passage of time, whilst the allegation is not being deemed sufficiently credible to be prosecuted. The doubt which the police assert as to the applicant`s innocence can justify their disclosing instead of the benefit of any doubt protecting the applicant in accordance with his common law right to a presumption of innocence.
Relying On The QAF and Statutory Guidance for Chief Constables
So what is the position of the person about whom locally held non conviction information exists? How effective is the decision making process in determining whether any information does represent a credible indication of risk that is relevant to the prescribed purpose of the position applied for and when is it a proportionate precaution to disclose this information to the employer? How foreseeable is the outcome of the application for the ECRC from the guidance that is available to the job applicant so that he can make a properly informed decision to undergo the process especially given the stigmatising effect of an adverse disclosure and the potential for irreversible damage to his professional and personal reputation?
The QAF was designed by The Association of Chief of Police Officers (ACPO) and The Disclosure and Barring Service (DBS) to provide a standard against which non-conviction information is disclosed by subjecting the information to tests of relevance, substantiation and proportionality, to ensure that a consistent level of reliable intelligence is disclosed setting out the rationale for the decision regarding disclosure. Before disclosing the Chief Officer confirms that he has considered the human rights of the relevant parties. This is essentially considering the proportionality test again, as the applicant`s right to respect for private life under Art 8 HRA 1998 will be measured against the potential harm caused to the vulnerable as a result of non-disclosure. The process is also subject to the Wednesbury Principles derived from Associated Provincial Picture Houses Ltd. v Wednesbury Corporation  1 KB 223 whereby the decision maker must consider all of, but only the relevant considerations, and not make a decision regarding disclosure that no reasonable person properly directing himself could make. This places an onus on the police to consider the widest range of material attaching the appropriate weight to relevant considerations. The possibility of offering the applicant the opportunity to make representation should be considered and if unsatisfied with the outcome of this the applicant has the right to appeal to the Independent Monitor for a review of the disclosure decision and as a last resort, judicial review.
The potential applicant has at his disposal the document “Quality Assurance Framework. An applicant`s introduction to the decision-making process for enhanced disclosure and barring service checks” 23 (“The Applicant`s Guidance”) produced by the standards and compliance unit of the DBS and issued in March 2014. This guidance provides a rationale for the disclosing of “any” information through enhanced level checks referring at page 9 to “One reason” without reference to any further; “one reason is that the two groups that disclosure primarily seeks to protect from harm are children and vulnerable adults, both of whom, sadly, are the least likely to make good witnesses”. However this justification is substantially lacking. In the first instance it has no relevance to; the disclosure of information that does not constitute suspicion of criminality and the disclosure of information regarding criminal allegations where the alleged victim was not a child or vulnerable adult. (It has little, if any relevance to the disclosure of information for positions that do not involve contact with children or vulnerable adults but that is not the focus of this paper). Furthermore, many allegations either prior to or at trial fail to result in a conviction for reasons other than the alleged victim`s inability to make a good witness. In the case of acquittals there may have been reasonable or overwhelming doubt regarding the truth of an allegation without any disadvantage relating to the witness evidence but the applicant deemed not guilty may be unable to do anything to distinguish his case from trials which were inhibited by the limited ability of a child or vulnerable adult witness either because their evidence was not subjected to scrutiny under cross examination or because other weaknesses in the prosecution`s case are not ascertainable in the reasoning given for the acquittal at trial.
The Applicant`s Guidance contains numerous implied admissions that the process of deciding on disclosure is impossible to do in a rational and consistent approach. It is clear that there is no reliably produced outcome by attempting to follow the common law tests provided in the guidance according to a literal reading and given the scope for interpretation it appears to the applicant that the key determining factor in the decision to disclose is likely to be the attitude of the chief of police towards the quality of the intelligence.
Ironically the Applicant`s Guidance refers to R (S) v West Mercia Constabulary  EWHC 2811 (Admin) in which the challenge against disclosure was upheld, to explain the basis on which the disclosure of non conviction information and specifically acquittal information was justified by quoting Mr Justice Wyn Williams at Paragraph 70; “I do not suggest for one minute that allegations should not be disclosed in an ECRC simply because the alleged offender has been acquitted.…in such circumstances, however, it might well be perfectly reasonable and rational for a chief constable to conclude that the alleged offender might have committed the alleged offence”. Holding the threshold for disclosure at such a low standard (that it might be reasonable and rational to believe that the accused might have committed an offence) would mean that any allegation which was not categorically disproven at trial so that it could no longer be said of it that there was a possibility that the accused committed the offence, was subject to disclosure. It is questionable whether the court even satisfied this standard in the case itself as it was stated that it was “very unlikely” (Paragraph 70) that the accused was guilty and therefore unreasonable for the information to be disclosed rather than it being unreasonable to believe that the accused might have been guilty. In any event very few other applicants will be in a position where they are able to undermine the suspicion as to their guilt with such strong evidence as in this case when there was very compelling evidence of mistaken identity.
The Applicant`s Guidance at page 8 admits that the threshold for disclosure is lower than the criminal standard stating that “The civil threshold (`on the balance of probabilities` ) is closer to what is required here, but police also have specific direction from case law.” It does nothing to underpin the reliability of the disclosure process that the closest comparison is the standard of proof determined through a trial process which does not exist in the decision to make disclosure of non-conviction information but is the comparison in any way accurate? A reference to a “standard of proof” required for the disclosure of non-conviction information is noticeably absent from the Applicant`s Guidance. It is further conceded at Page 9 that “The weight of evidence required is set at a reasonably low level. Some have argued that a higher test, one of a balance of probabilities should be used.” It is apparent that ACPO and DBS either did not have the confidence to propose that non conviction information relating to criminal allegations could be substantiated to any actual standard of proof, or that the requisite standard which they express as “reasonably low” would in fact be so low that it undermined the credibility of the QAF if explicitly stated. The skirting around the requirement for a standard of proof also speaks to the illegitimacy of disclosing any information including that which does not constitute suspicion of unlawful behaviour. Within the criminal justice process it would be wholly irrelevant whether or not this information was true as it does not represent an allegation that can be prosecuted thus there is nothing to be proved to any standard and it has become subject to the test of substantiation only because it relates to a matter which has come to the attention of the police. However in R(L) v Commissioner of Police of the Metropolis (2009) UKSC 3 at Paragraph 80 Mr Justice Munby opined that there was no implied restriction of disclosing only any criminal or potentially criminal information and this is the interpretation of s113B(4) PA 1997 which the courts have applied.
Another section of the Applicant`s Guidance is fatal to the assertion that The QAF represents a useful tool by which only the appropriate quality of information is disclosed. The statement on Page 7 under “MP7a-Disclosure/Referral Rationale Consideration” which reads “- if your information fails any test in box (2),3,4,(5) or 6 it is likely that disclosure is not possible (you cannot disclose what is not relevant/ might not be true /cannot be substantiated or is not proportionate)” Noticeably the failure of these tests could not even be expressed as conclusively prohibiting the information from disclosure which raises the question of what objective value the tests have at all in their function as a filter for inadequate information. Furthermore, if the mere possibility of an allegation being true is not sufficient to merit disclosure then only in cases where it is known that the allegation is true should disclosure be made. It may be felt in certain circumstances that there is compelling evidence to implicate the guilt of a suspect whose victim would not make a good witness but this does not escape the problem that the only way in which an allegation can be established as true beyond reasonable doubt is through a finding of guilt following a trial process or an admission of guilt which should result in a caution if not prosecuted. Therefore, after quoting justice Wyn William`s endorsement of disclosing all allegations but for those known to not be true, conversely, the guidance then goes on to in principle, rule out any allegation that has not resulted in conviction or an admission of guilt from being disclosed on the grounds that it might not be true.
The Applicant`s Guidance further states at page 9 under the heading of “Substantiation” that “for disclosure purposes, police are required to consider whether there are “untoward circumstances” 24 that lead them “to believe that the information might not be true” or “is so devoid of substance that it would be unreasonable to conclude that it might be true”” .A quality assurance process that considers the potential existence of circumstances that undermine the credibility of a criminal allegation of an untried suspect, before disclosing the allegation as an indication of risk, is one that fails to overcome the reality that any disclosure made by the process is a disclosure made in untoward circumstances. In regards to the allegation itself, untoward circumstances are not needed to cast doubt on the truth of an allegation within the criminal justice process for the individual to avoid an eventual finding of guilt. The allegation merely has to fail to satisfy the standard of proof. However within the decision to disclose the applicant is being held to a stricter standard simply because his guilt has been undetermined within the criminal justice process. Evidence of such untoward circumstances will often be unknown or unascertainable placing the applicant in such a position at a disadvantage regarding the prospect of disclosure. The injustice of a disclosure decision making process in which so much weight is attached to the circumstances in which an individual happens to be accused is the perverse outcome of effectively reversing the burden of proving innocence against the applicant and this is exacerbated by having no coherent standard of evidence by which he can disprove the allegation.
The question of whether the information “is so devoid of substance that it is unreasonable to conclude it might be true” does not require consideration of potentially untoward circumstances. However the applicant may have great difficulty in predicting the likelihood of disclosure based on this vague test as the practical reality is that relatively few allegations will satisfy its strict application without the benefit of the fact-finding inquiry of the criminal trial. It is not possible to reliably test the substance of an allegation without allowing the suspect a fair hearing and his opportunity to refute it using the powers conferred by Article 6(3)(d) HRA 1998. This test may rule out an allegation which is clearly absurd despite the absence of a trial but will not rule out any allegation which, without being subjected to proper scrutiny cannot be shown to be substantially lacking in substance. Given the stories of cases which ought to have been disposed of without trial due to their lack of credibility that have nonetheless been proceeded with and entertained at trial there is much reason for the applicant to doubt that this test can be relied on to identify blatantly false allegations within the disclosure decision process, an example being of the highly publicised case of Deputy Head teacher Kato Harris who was prosecuted despite a jury acquitting him within twenty six minutes of allegedly raping a student on three separate occasions, each during school hours within a room viewable through a glass panel door situated in a busy corridor.25
Other concerning media revelations in December 2017 were that the rape cases of Liam
Allan and Isaac Teary collapsed at the stages of trial and only days prior to trial respectfully, due to the failure of the police to disclose vital defence evidence. As a consequence of these procedural failings the director of public prosecutions made the decision in January 2018 that all current rape and serious sexual assault cases should be urgently reviewed due to concerns about “deep rooted and systemic” problems with electronic evidence being disclosed to defence lawyers and an “improvement plan” was put together by The Crown Prosecution Service, The National Police Chiefs` Council and The College Of Policing to address the problem.26 On 3rd April 2018 The Times Newspaper revealed that it had seen a dossier on reports of 14 focus groups with the police, prosecutors and judges and a survey of prosecutors obtained by the Centre for Criminal Appeals from the Crown Prosecution Service Inspectorate and the Inspectorate of Constabulary which detailed how police purposely and habitually inhibit the legal defence from accessing evidence which would undermine the prosecution with an admission that some police had in fact been trained to do so.27 When there have been such large scale problems in relying on the quality of evidence prepared for trial hearings there is little reason for public confidence in the police`s ability or willingness to determine when allegations have been sufficiently substantiated to justify disclosing them within an ECRC, especially given that many of the allegations subject to disclosure have never been prosecuted or proceeded to trial where the defence counsel is more likely to elicit undisclosed evidence favourable to the defence.
The Applicant`s Guidance continues to explain at Page 9 the process of substantiation by stating “A reasonable decision-maker would not disclose the existence of allegations without first taking reasonable steps to ascertain whether they might be true”. The logical corollary of this statement is that non-conviction information held by the police by itself, is insufficient to be relied upon as evidence that the applicant poses a risk despite that it can still be disclosed. Again, this is an implied admission that the disclosure system cannot operate in a fair and consistent way because the ascertainability of facts will influence whether an unproven allegation is disclosed with applicants less able to verify their story being particularly disadvantaged, and the inadequacy of at best, being able to establish the mere possibility of an allegation being true.
The Applicant`s Guidance provides a flow chart at Page 7 to demonstrate The QAF`s disclosure decision making process which details the substantiation test; (Box 4) “is it reasonable to believe the information to be true?” On a literal reading of this, given that the allegation has not resulted in a caution following an admission of an unlawful act or conviction following the proving of guilt, it cannot be regarded as rational, let alone reasonable, to believe in the truth of a factual claim that by definition is unknown. However the claim is made at Page 11 that “ In some cases, the information may be so obviously reliable, relevant and serious as to be disclosable however detrimental the consequential effect on the applicant”. While non conviction information can be determined relevant and serious the apparent reliability of a source of information cannot be equated with factual proof. A very high degree of credibility was attributed to innumerable cases which were subsequently proven to have resulted in wrongful convictions and miscarriages of justice. Even if it were reasonable for the chief officer of police to believe the information to be true, a system that allows the disclosure of this non-conviction information as an indication that the applicant poses a risk to the vulnerable should never carry the status of a declaration of an allegation`s truth as if it had the credibility of an allegation which has been tested through the procedural rules of a fair hearing by an independent and impartial tribunal. This presumptive statement reflects the danger of disclosure being decided on by the police. The amalgamation of the police`s role of investigating crime with their role in making quasi-judicial declarations of criminal liability or suspicious behaviour relevant to considerations of risk, is sullied by their having a natural bias against suspects regarding whom they have accumulated evidence to suggest their involvement in criminality. The police are routinely inhibited by having to overcome the evidential burden in constructing a case sufficient to be prosecuted to the extent that there is incentive to avoid the potential blame for failing to provide evidence sufficient to prosecute if the applicant subsequently offends within the course of his employment. The police are likely to view it as their role to validate the suspicions made known to them via the disclosure of soft intelligence in order to protect the vulnerable from being harmed. Their dual role compounds the punitive effect of merely becoming involved with the criminal justice process for those who wish to work with the vulnerable.
The credibility of allegations often depends substantially on the respective status of the complainant or witness(es) and the suspect. In the substantiation test, the evidence asserting the applicant`s guilt or wrong doing offered by the professional such as the social worker or police officer will invariably equate to a reasonable belief in the truth of an allegation with the result that those susceptible to involvement with these officials are more vulnerable to allegations being disclosed within enhanced disclosure checks not just because of their propensity to become the suspect in an allegation made to the police but due to the imbalance of status at play when they attempt to rebut such an allegation.
However leaving aside the evidential deficit there is still the problems in the form of the question which asks whether an allegation is “true” without the further consideration that a court would ask for all but strict liability offences, as to whether the accused had the state of mind to render him morally culpable for the legally proscribed behaviour. This risks in the perception of the employer, either reducing criminality to a matter of physicality, or giving the impression that the police intelligence is of such a quality that it can be presumed that the applicant had a guilty state of mind. Even if it did appear reasonable to believe that a person had carried out an unlawful act, the disclosure of this information within a criminal record certificate enables the conflation of unlawful behaviour with criminal conduct precluding the possibility that the suspect`s state of mind did not render him blameworthy for the act or that he had lawful justification for his behaviour in the circumstances, which is unascertainable from the facts. This moral dimension of the criminal justice process is not accommodated within the disclosure of non-conviction information even when the applicant is given an opportunity to make representation regarding his behaviour because, in addition to the problem regarding representation and concerns of self-incrimination, if an applicant has to concede that he was involved in unlawful behaviour he is not assisted by the powers conferred by Art 6(3) HRA 1998 to require witnesses to provide evidence, or access to other sources of evidence to explain the circumstances in which he acted, even if this information were ascertainable. Instead he has the impossible task of convincing an employer that his state of mind at the time justified his behaviour. It is not an adequate excuse that the information disclosed has been determined as relevant information to considerations of risk rather than a determination of guilt or innocence when there is no reliable means of establishing a culpable state of the applicant`s mind to render him blameworthy for his behaviour.
A further problem in asking if the information is “true” is the matter of subjectivity on the part of the complainant. Even if the applicant`s behaviour has been complained of honestly to the police without an objective description of the behaviour it can be difficult to clearly understand the nature of the alleged incident. This increases the likelihood that the police who are tasked with interpreting the information are also unhelpfully subjective in their expression when explaining their rationale for disclosing with adverse consequences for the applicant and this has been complained of to the Independent Monitor as a reason for applicants being unsuccessful in their application. 28 What may be correctly assessed as the truthfulness of someone` s allegation based on their opinion risks being disclosed as the truth of the occurrence of facts. This problem is due in part to the undetermined nature of non-conviction information but also caused by consideration of the information as “true” without the requirement for it to satisfy a legally defined offence.
The Proportionality Test
Looking further at the Applicant`s Guidance the “MP7a-Disclosure/Referral Rationale Consideration contains the proportionality test which asks23; “Having reviewed the information (and your rationales for 2,3,4,5) do you believe that it is proportionate to propose disclosure of this information?”. The need for the decision to disclose to be proportionate in regards to the applicant`s right to respect for private and family life under Article 8 HRA 1998 is the basis of principle 3 of the statutory Disclosure Guidance, the principle having been imposed by the Supreme Court in R (L) as the proper way of determining what information might be relevant and ought to be disclosed with equal weight being given to the competing considerations of the social need to protect the vulnerable and to the applicant`s article 8 right. Lord Hope at Paragraph 45 stated that careful consideration should be given whenever the level of disruption to the private life of the applicant is considered to be equal to or greater than the degree of risk of non-disclosure to the vulnerable group, with the rationale for a disclosure made very clear. The ECRD regime does not require this proportionality test in the process of disclosing convictions and it is not applied in the decision to bar an individual from a regulated activity. How then can it be rationally justified for use in the disclosure of non-conviction information? If the Police intelligence reliably indicates that the applicant poses a risk of harm to the vulnerable people he will have access to in his job how can the impact on the applicant be considered as a justification in not disclosing with the consequence that the level of protection afforded to the vulnerable fluctuates according to the sensitivity of the applicant and how can such an approach be considered conducive to promoting uniformity in levels of disclosure?
On any moral analysis no regard should be had to sparing the impact of disclosure on an applicant reasonably suspected to have a propensity to cause harm to the vulnerable group he will have access to without an employer being warned through disclosure. It would appear that the need for the separate test of proportionality therefore admits to the unreliability of substantiating an allegation without the due process of a trial and the unfairness of disclosure to the applicant who has never been proven guilty. The Applicant`s Guidance at page 12 expresses this in the form of a consideration of the applicant`s human rights as well as proportionality; “So, if the negative impact on the applicant‟s private life (including employment prospects) is far greater than the potential risk of harm to the vulnerable, a decision not to disclose may be the appropriate one.” Apart from being so vague as to amount to no practical guidance for the applicant it contains no direction that the detriment of the decision should be borne by the party suspected of wrong doing and this is unsurprising because the bar for disclosure, while not explicitly stated, is clearly not set at the standard of reasonable suspicion.
The concept of the proportionality test as a balancing exercise with the scales beginning at an even level is problematic as an analytical tool in weighing the respective potential harm between the applicant and the vulnerable people. On the one hand if disclosure is made at the very least a significant infringement on the applicant`s privacy can be presumed to occur with the possibility of a multitude of further adverse consequences to his career and reputation. On the other hand a decision not to disclose holds an obviously less likelihood of harm being caused to a vulnerable person when the applicant is not even known to have committed an offence relevant to the prescribed purpose of the regulated activity, let alone pose a risk of committing some further wrong against the vulnerable. Why then should the scales not be tipped in favour of non-disclosure in the balancing exercise in accordance with his common law right to a presumption of innocence? As the balance of competing considerations is ill-conceived as assessing a balance of potential harm the counter argument is that the degree of harm that could be caused to the vulnerable justifies there being no presumption against disclosure and that the law should seek to protect the innocent rather than those who would cause harm to them. However we are now back to the need for guilt to be established through a fair trial rather than allowing a system which will be so detrimental to innocent applicants, and we have clearly moved away from the over-simplistic analogy of using weighing scales to determine proportionality as a fair method of making the decision to disclose. Furthermore, it is impossible to measure the extent of the emotional impact of disclosure to the applicant in any objective sense which arguably renders the test academic. While the approach to proportionality endorsed in R(L) may benefit some applicants whose non-conviction intelligence amounts to a less serious indication of risk , how reassured the applicant can be is another matter given that, in this case, the decision to disclose the placing of the applicant`s delinquent teenage son on the local authority`s child protection register under the category of “neglect“ was held to be proportionate despite that the disclosure was for employment in a role in which the applicant already worked supervising secondary school children during break times with four other colleagues, and as a consequence of disclosure she was dismissed without an opportunity to make representation deemed necessary.
It is clear that the dicta from case law referred to in the Applicant`s Guidance is contradictory and that it does not constitute any form of coherent guidance on which the potential applicant can predict the outcome of an application. The QAF may assist in promoting a more consistent level of disclosure across police forces but there remains much scope in interpretation of intelligence and no clearly defined evidential threshold on which the potential applicant can attempt to base his decision whether to apply. Whatever quality assurance system is put in place it is impossible to strike a rational balance between making precautionary disclosure of unproven allegations in order to protect the vulnerable and fairness to the applicant by only disclosing reliable information relevant to considerations of risk.
An additional source of guidance for the potential applicant who becomes aware of it, is the second edition of the statutory disclosure guidance 2015 which is intended for chief officers of police but is available on the Gov.uk website29 and is of some limited use in informing his decision to apply. He may be given some assurance in the knowledge that the police are directed not to presume that any category of allegation should be disclosed (Principle 1) and possibly less assurance from the principle that the information disclosed should be “sufficiently serious”, “sufficiently current” and “sufficiently credible”, avoiding the disclosure of merely “poor behaviour” (Principle 2) given that the Applicant`s Guidance to the QAF explains that “any” information can be disclosed even if it is not a criminal allegation and the evidential threshold for disclosure is admittedly low. There is little encouraging in the principle that the chief officer should consider offering the applicant the opportunity to make representation (Principle 4) given the possibility of the opportunity not being offered, it being offered in spite of a decision having already been made to disclose, the inadequacy of the opportunity as a fair hearing and the risk of self incrimination from doing so.
In spite of the purported justification for disclosing non conviction information in the guidance, rather than relying on information disclosed through the ECRD regime the particular vulnerability of these client groups could be addressed by the higher level of vigilance promoted through safeguarding training, with referrals to local authority children`s and adults safeguarding boards available for their investigation. For example, within the health and social care sector the introduction of The Care Certificate qualification in April 2015 which is expected to be undertaken by all healthcare assistants and adult social care workers contains a mandatory unit on Safeguarding Adults which outlines the 10 categories of abuse identified in The Care Act 201430 including extensive lists of indicators of abuse for staff to recognise with instructions on reporting suspected abuse or raising a safeguarding concern with the local authority which is not strictly limited to criminal acts or omissions. It is difficult to imagine an attraction to commence work within this sector for an abuser attempting to access vulnerable people when he is subjecting himself to an environment with co-workers primed to identify and report any suspicions of abuse without the need for any deterrent effect represented by the disclosure of non-conviction information under the ECRD regime.
The Breach Of Article 8 The Human Rights Act 1998
The individual about whom non-conviction information is held faces the prospect of extensive encroachment into their right to respect for private and family life, their home and correspondence under Article 8 The Human Rights Act 1998 (Article 8 HRA 1998) and in certain circumstances, more so than persons with convictions, depending on the nature of the offence that the intelligence relates to. This applies not just within the context of his employment prospects but in his entitlement to welfare benefits if he is unemployed and seeking work. The scope of Article 8 was considered by Lord Hope in R(L) who at Paragraph 24 recounted principles established within the jurisprudence that the right encompasses; “the right to establish and develop relationships with other human beings”(X v Iceland (1976) 5 DR 86; Niemietz v Germany (1992) 16 EHRR 97, Paragraph 29) that for the individual excluded from a particular field of employment “the problems that this creates as regards the possibility of earning a living can have serious repercussions on the enjoyment of her private life ” (Sidabras v Lithuania (2004) 42 EHRR 104, Paragraph 48) and that the individual “is entitled to have her good name and reputation protected” (Turek v Slovakia (2006) 44 EHRR 861, Paragraph 109). Much of the harm caused to the individual is of an intangible or psychological nature, including losses of opportunity and social exclusion, unquantifiable but substantially impoverishing the unconvicted person`s quality of life with the ever present threat of non-consensual disclosure of the information or alerting the suspicions of others to their having `something to hide` in their efforts to avert disclosure .
Pressure Put on The Unemployed To Disclose non-conviction information and undergo Enhanced Disclosure Checks
The jobseeker in receipt of benefits because of his actively seeking work is obliged to provide evidence on an ongoing basis to justify his entitlement. When claiming jobseekers allowance or universal credit a mandatory claimant commitment is established upon the initial attendance at the jobcentre for which the job seeker is asked about barriers to employment including any police record that may inhibit his employability. This agreement is reviewed and updated throughout the jobseeker`s claim as he will be expected to broaden his job searching criteria without unnecessarily limiting the job sectors in which he seeks employment, with the jobseeker being obliged to accept the new terms as a condition to remain entitled to the benefit. The jobcentre can also require the job seeker, through a jobseeker direction, to apply for specific positions within a reasonable travelling distance of the job seekers home which results in many compulsive applications for jobs within regulated activities particularly as the health and social care sector is so under-staffed.
The process became more controversially prescribed and coercive following the inception of the Universal Jobmatch account in November 2012, used by the jobcentre to monitor the job seeker`s efforts to obtain employment. There are two boxes for the job seeker to electronically tick which authorise the jobcentre to send jobs to the job seekers account for him to apply for, and to authorise the jobcentre to view the job seeker`s searching activity and correspondence on the account. It is little surprise that job seekers typically `agree` to setting up the account given the coercive pressure employed by the jobcentre staff and their ability to require job seekers to set up an account through a jobseeker direction, as the Department for Work and Pension (DWP) states “If they refuse to comply, they can be recommended for a benefit sanction.”31. If the jobseeker refuses to allow the jobcentre viewing access to his account the job seeker is expected to produce printed copies of any number or all of the screens which evidence his job applications and job seeking activity from the universal jobmatch account 32 with the effect that the jobcentre can obtain full transparency into his use of the account by either viewing it electronically or through printed evidence. The viewing of the account activity means the jobcentre staff can identify jobs that the job seeker is avoiding in his search criteria or job applications which means that the avoidance of employment within regulated activity can be identified leading to questioning by the jobcentre staff to whom the job seeker is accountable for his job seeking efforts. Ironically it is the jobseeker against whom non-conviction information is held rather than the job seeker who has a disqualifying conviction, that does not have the excuse of being precluded from employment for certain positions and certain industry sectors and is therefore expected not to limit his job search activity, training or job applications by avoiding them, with the threat of losing his entitlement not only to a basic subsistence but in certain circumstances his entitlement to financial support with the payment of the job seeker`s rent and council tax as well as losing entitlement to concessions in his medical treatment and prescriptions. The DWP is unequivocal about the consequences of failing to adhere to any term of the claimant commitment in a universal credit claim; “Your Claimant Commitment will clearly state what will happen if you fail to meet each of your responsibilities. You will have a cut in your benefit, known as a sanction, if you fail to meet one of your responsibilities and can’t give a good reason to explain why.” 33 The job seeker faces the dilemma of having to disclose the police intelligence to the job centre as a reason for not making an application as directed by the jobcentre or not pursuing employment within regulated activity when asked to as part of his claimant commitment with the risk that this will not be accepted as an excuse because the merits of the application can only be assessed by the employer on an individual-application basis. Alternatively, the job seeker can run the risk of making the job application and the possibility of having to undergo the enhanced level check knowing that he is obliged under the terms of the claimant commitment to keep the job centre informed as to the progress of the application which may include his making representation to the police, the outcome regarding the decision to disclose, and the reason for the anticipated unsuccessful application received through feedback from the employer. In either case the job seeker`s ability to keep private the existence of an unproven or non-criminal allegation against him is substantially compromised however much he wished to move on in his life, by the disclosure of this information proceeding with no freely given consent. Perversely, some claimants may resort to dishonestly informing the jobcentre about their qualifications or work history in attempt to avoid mandatory job applications within a regulated activity, or purposely make poor applications for jobs which they anticipate will entail the disclosure of stigmatising non-conviction information fatal to the application, in attempt to preserve their privacy regarding the police intelligence.
The Expectation That The Applicant Discloses Non-Conviction Allegations In Advance of The Police`s Decision Regarding Disclosure
In his applications for jobs within regulated activity the individual against whom non-conviction information is held is often asked such questions as whether he has previously been accused of abuse or inappropriate behaviour, or investigated as a result of such an allegation with the warning that by providing false information within his application he could be committing a criminal offence34 or that it is a requirement that he makes a declaration as to the truth of the information he has provided with the consequence that the fact of a complaint or investigation subsequently transpiring will very likely result in dismissal. The job applicant is understandably anxious about the risk of committing an offence for falsely denying such an allegation, or the failure to declare the allegation becoming known to the DBS and becoming disclosable within a future ECRC. This can happen even when the information relating to the previous allegation that risks disclosure does not constitute a criminal offence. In this way the ECRD regime has the effect of stigmatising the citizen who has committed no breach of the law, or no proven breach of the law and then punishes him for attempting to avoid the effect of the stigma . When faced with this questioning the applicant is being asked to deliver unto himself “something close to a killer blow”35 to his application by flagging up his suspected unsuitability within the application without even the hope of his application not being inhibited by the disclosure of non-conviction information with the inevitable result that many job seekers will simply be deterred from applying. In such a situation the applicant about whom non-conviction information is held can be in a worse position when applying to work with the vulnerable than an applicant who has a spent conviction and is applying for employment outside of regulated activity having the protection of section 4(3) The Rehabilitation of Offenders Act 1974 permitting him to deny the existence of the conviction without being prejudiced in regards to employment. For certain spent convictions he will still have the advantage of not having to declare them even within an application for employment within regulated activity following the case of R(T) v Chief Constable of Greater Manchester  EWCA Civ 25 which triggered the introduction of the amended disclosure scheme whereby single convictions for non violent and non sexual offences that did not lead to a custodial sentence could avoid disclosure after 11 years or 5.5 years if the convicted person was under age 18 on the date of the offence, and were not listed within the category of offences that are exempt from the `filterng rules`.
Other Problems With Consenting To The Intrusion Into Private Life
There is no opportunity to consent to an enhanced disclosure if you happen to be the third party connected to someone who becomes involved in applying to work within regulated activity within their home such as adult or child fostering or child minding. The only method of exercising some degree of control in avoiding the possibility of becoming the subject of such a disclosure as a third party is for the individual to either disassociate himself with the applicant who could be a family member, friend, colleague or relationship-partner once the non-conviction information is recorded, or to avoid close contact with someone he anticipates may pursue employment within this area in the future. He may have to do both. In such a scenario the damage to the individual`s social relations and losses of opportunity to pursue the law-abiding lifestyle that he chooses is immeasurably impaired on the basis of his having previously come to the attention of the police, without proof he was guilty of any crime.
Higher and further education courses at college and university requiring enhanced disclosures as a prerequisite make the right to study or to pursue a particular career contingent on not having a disqualifying history of suspicious or concerning behaviour which implies the candidate`s unsuitability. This is a clear infringement on Article 8 HRA 1998 that cannot be regarded as necessary or proportionate and underlines that the practice of enhanced disclosures is not simply a matter of allowing an employer, licensing authority or regulatory body the opportunity to make a properly-informed decision regarding the applicant`s suitability for a given position but involves overt streamlining of individuals according to flawed notions of suitability regarding their choice of career or academic pursuit on the basis of unproven or non-criminal information .
The Psychologically Damaging Effect Of The Stigma Associated With Disclosed Information
The stigma attached to a finding of guilt through a public trial hearing is the unavoidable consequence of the open administration of justice. Whether or not this has a desirable deterrent function it is for those who have been proven beyond reasonable doubt to have committed some significant wrong doing against society. The stigma faced by those who have not been established as guilty of crime should be a matter of moral concern. Despite ECRCs being treated as confidential, when offers of employment conditional on a satisfactory ECRC are withdrawn or an applicant unexpectedly withdraws his job application following the disclosure, it may be difficult for the applicant to conceal or avoid suspicions of an adverse disclosure from Job centre staff, employers, colleagues, family or friends. This may entice the job applicant to keep secret the positions that he is applying for in the first place to those he can avoid telling or to simply never apply for certain positions even when he is being urged to apply by his employer or when not applying will curtail his career advancement. There is also the concern that the applicant is unable to prevent the content of the non-conviction information, or the fact of an adverse disclosure being communicated by word of mouth if he reveals it to the prospective employer in the hope that his application will be nonetheless successful. In a way the stigma attached to the disclosure of non conviction information can be amplified because regardless of the allegation which may not have been sexual or very stigmatising per se, the fact that it was disclosed within a vetting process to work with vulnerable adults or children exacerbates the impression it gives. When the matter is informally communicated the message is likely to prominently be that the applicant did not get the job working with vulnerable adults or children because of information disclosed by the police with much less if any detail relating to the nature or context of the information. In addition the fact that the police made a voluntary disclosure when it was within their discretion not to do so may lend some credibility to the doubt cast on the applicant`s good character in some people`s view. The subjective effect on the applicant will mean that he is impacted by not knowing the extent to which the information has been communicated and to whom, nor whether and to what extent it may have been embellished.
The Uncertain Future For The Employee
The applicant about whom non-conviction information exists is in a precarious position where public opinion could sway once again as the tide of high profile sexual abuse scandals continues unabated in the media and populist politicians may be motivated to reinstate employment vetting practices which attach more weight to unproven or non-criminal allegations of wrong doing. The susceptibility to political change is evident from the sequence of events following the soham murders. The Bichard Inquiry Report led to the Safeguarding Vulnerable groups Act 2006 under which the proposed Vetting and Barring Scheme (VBS) managed by the Independent Safeguarding Authority46 would require those who worked in regulated activity to register and be constantly monitored on their system. The process of implementing this VBS scheme was bought to an end by the chance that there was a change to the coalition government in 2010. However the employee who works or aims to work within regulated activity who is concerned about a record of non conviction information remains in a position of uncertainty regarding the security of his career and reputation should the information become disclosable within a renewed more stringent trend of decision making.
A Lack Of Justification In The Literature
So what exactly is the basis on which it has been popularly deemed necessary for the applicant for employment with children and vulnerable adults to be vetted by a disclosure process which is intrinsically unjust towards him? It is difficult to identify when a rational justification for disclosing non conviction information within the ECRD regime has been clearly spelled out despite that the ECRD regime effectively places the onus of proving innocence onto the applicant and deprives him of a trial process in which to do so which flies in the face of his common law right to a presumption of innocence and his right to a fair trial under Article 6 HRA 1998. As examples of the literature endorsing its use it can be said of the following; The White Paper On the Record: The Government’s Proposals for Access to Criminal Records for Employment and Related Purposes in England and Wales (1996) (Cm 3308) which preceded the Police Act 1997, The Bichard Inquiry Report (2004) following the infamous Soham murders, the reviews of the criminal records disclosure regime by the independent advisor for criminality information management Sunita Mason; A Balanced Approach (2010) and A Common Sense Approach (2011) commonly referred to as “The Mason Report”, and “Quality Assurance Framework. An applicant`s introduction to the decision-making process for enhanced disclosure and barring service checks”, all of these appear to be lacking in an explanation of how the disclosure of police intelligence can operate within ECRD regime in a way which is fair to the applicant.
In R(L) lord Hope referred to Paragraph 30 of the white paper which stated “After very careful consideration the Government has concluded that it is right for such information to continue to be disclosed where there are particularly strong grounds for it, such as to combat the risk of paedophile infiltration of child care organisations.” This was in spite of their being no apparent reason that special preventative measures were needed to address such infiltration. On the scant evidence available, a subsequent independent report based on 1989 Home Office pilot schemes which tested criminal records vetting found that there was no evidence that paedophiles were obtaining positions within voluntary organisations to gain access to children.36 Accordingly there would be no reason to have suspected that they were attempting to do so within paid employment. In any case the requirement for particularly strong grounds to justify the disclosure of non conviction information as asserted in the white paper has been replaced with the justification of as little as a speculative concern regarding a potential risk based on a finding of “inappropriate” behaviour as demonstrated recently in the case of SD, R (On the Application Of) v The Chief Constable of North Yorkshire as discussed below.
The 2011 Mason Report 37, despite the implementation of some of its recommendations including the narrowing of the criteria of information relevant for disclosure 38 did not lay out any argument as to the necessity of disclosing non conviction information. The report referred to a shocking case of an applicant for a children`s tennis coach position who had previously been accused of sexual assault by four separate children and subsequently in the report Ms Mason stated her view that the disclosure of non conviction information was “crucial” to protecting children and vulnerable adults as if no further discussion was warranted to justify it. (“However I am still convinced that the disclosure of such information remains crucial to the protection of children and vulnerable adults.” Page 39) However The Mason report`s endorsement of the use of non conviction information was substantially undermined by its recommendation (6D) that when Police have deliberated over the disclosure of information for 60 days without a decision, a certificate not containing the information under consideration should be produced, leaving the police with the option to disclose it subsequently. If the disclosure of non-conviction information was “crucial” to the protection of children or vulnerable adults it would be grossly negligent to impose a policy of disclosing a ECRC without it for the purpose of encouraging expediency in processing police information.
The Mason report was preceded by her report “A Balanced Approach” 39 which was similarly lacking in substance when attempting to set out a rationale justifying enhanced level police disclosures with the resort to the use of vague subjective terminology;) “Soft intelligence is information held by the police locally which is not a criminal record (for example allegations of sexual impropriety with someone under the age of consent.)” (Paragraph 111). When dialogue slips from references to explicit criminal offences into notions of “impropriety” it is already conceded that we are in the realm of suspicions that struggle to be conceived of as legally proscribed behaviour. This one quote alone provides a synopsis of the conceptually flawed ECRD regime being unworkable in any form that resembles a fair hearing. The conflation of a legal concept (“the age of consent”) with a term too subjective to ever form a legal concept (“sexual impropriety”) which attempts to avoid the problem of a lack of a standard by which any criminal behaviour can be proven with the inherent justification that the rules of criminal justice can be re-defined in the matter of protecting children from harm.
The Bichard Report 40 is often referred to when the argument is made that enhanced disclosures are needed because of a criminal deviant who becomes involved with the criminal justice system numerous times, especially beginning with minor offences, can evade conviction and his criminal tendencies are unknown leaving the public at risk from him, with Soham Murderer Ian Huntley purported to exemplify this. This argument however has little substance. As the report conceded that there was no causal link between the murderer`s employment and the murders he carried out it should be questioned how rational the report can be regarded given that it went as far as recommending that as a result of the murders all employees working with children and vulnerable adults should be subject to a requirement of registering on a constantly updated scheme which prospective employers could instantly check via the internet or telephone (recommendation 19) when such a proposal would no doubt have been met with dismay but for the murders having occurred. The observation that there was no causal link between Ian Huntley`s employment and the access that he had to his victims has been noted in other studies.41. However it should be stressed that not only did this point alone undermine the need for drastic changes to employment vetting but it changes the case of the Soham Murders to a prime example of how an enhanced employment vetting process cannot prevent offending. In addition to the matter of his murders being unrelated to his employment, the depiction of Ian Huntley as someone who consistently sought to conceal his offending is incorrect. In fact not only did he admit under police caution to having sexual intercourse with a 15 year old girl knowing her age, during a police interview in August 1995, some seven years prior to the murders42 but he was also known to have telephoned social services seeking their intervention and admitting to his co-habiting with a 15 year old girl.43 The report concluded that the possibility of giving Huntley a caution under the then guidance despite the complainant`s unwillingness to prosecute, should have been explored44 as in Sir Bichard`s view a caution was the appropriate course of action45 From November 1995, only 3 months following Huntley`s admission but still 7 years prior to his murders the police became able to register cautions on the Police National Computer. This has enabled job applicants in Huntley`s position to be disclosed as known sexual offenders without the resort to locally held soft intelligence in the event that it would have done anything to prevent his offending although there is no evidence for this.
Convictions Avoiding Disclosure While `Inappropriateness` Is Still Disclosed
In R (T others) v Chief Constable of Greater Manchester others  UKSC 35 the automatic disclosure of cautions and convictions within the ECRC was held to be a disproportionate infringement of Article 8 as it could not be considered necessary in a democratic society for the protection of others to disclose all convictions despite their age, minor nature or relevance to the position. However the amended scheme regarding the disclosure of cautions and convictions has also been found to breach Article 8. In May 2017 The Court Of Appeal held that the automatic disclosure of an applicant`s multiple convictions or conviction for a specified offence was still in breach of Article 8. In R (on the application of P and Others) v Secretary of State for the Home Department  EWCA Civ 321 the decision of the police to disclose that P had two minor spent convictions for offences which she committed during a period in which she had an undiagnosed psychiatric condition which led to her offending was considered disproportionate. In February 2018 the high court went a step further in ruling unlawful the disclosure of multiple convictions in R (on an application of (1) QSA (2) Fiona Broadfoot (3) ARB v 91) SSHD and (2) SSJ  EWHC 407 (Admin). Three former prostitutes successfully challenged the police`s decision to disclose their multiple old convictions relating to soliciting on the basis that disclosure was a disproportionate infringement of their Article 8 right. The court acknowledged that their being victims of the most unfortunate circumstances led to their offending behaviour. Could this pave the way to a renewed sympathetic approach taken by the courts when considering the proportionality of disclosure by taking into account the unfortunate underlying circumstances of historical offending behaviour such as drug dependency, an abusive childhood or a psychiatric condition? Again in the instance of the disclosure of non-conviction information the applicant has the disadvantage of not being able to demonstrate his rehabilitation from offending behaviour.
Given that the information disclosed in these cases related to criminal allegations against an applicant which had been admitted or proven at trial it would logically follow that the argument is far weaker, for the lawfulness of disclosing non-conviction information. Sadly, the lack of substantiation by trial of a criminal allegation or the lack of even a crime being alleged appears to still be regarded as less important than the nature of the allegation as is evident from the decision in the recent case of SD, R (On the Application Of) v The Chief Constable of North Yorkshire where a contrasting and seemingly arbitrary judgement of relevance in considerations of risk was applied. Lord Justice Beatson at Paragraph 57 stated that “some disclosure” of allegations was justified when a disclosure had been made by North Yorkshire Police of “alleged unprofessional behaviour” which they believed to be relevant to the “employer`s risk and suitability assessment” in his application to work with children as a technician. This practice clearly exemplifies the conflict with the statutory guidance principle 747 that the police should not base their disclosure on their opinion as to the applicant`s suitability when they are overtly choosing information to disclose based on what they consider an employer should deliberate on when assessing the applicant`s suitability.
Whilst working as a lecturer supervising a college trip abroad almost four years prior to the date of the disclosure SD allegedly made inappropriate sexual comments in the presence of students aged 17 to 24 and other colleagues. The alleged comments were considered more likely than not to have been made due to the high degree of corroboration between witnesses, including independent witnesses. The students indicated that they found the alleged behaviour “inappropriate, strange and childish” (Paragraph 56). Though the police admitted that the alleged behaviour was not criminal SD`s argument that at most it simply amounted to poor behaviour that should not be disclosed according to principle 2 of the statutory guidance did not succeed demonstrating that inappropriateness still operates as a category of concern of its own.
The reality of the degree of the concern regarding SD`s alleged conduct in the view of the witnesses, the college and the police is possibly best reflected by the facts that; no information relayed to the college about the trip prompted them to investigate SD`s alleged behaviour until over a year later when investigating SD`s grievance against a colleague who told the investigator about SD`s alleged conduct, the college agreed to provide SD a positive reference in a compromise agreement under which he left avoiding the need for a formal disciplinary procedure, and it was not until following this agreement that the college reported the allegations to the police whose investigation did not even require contacting SD before concluding that no crime had taken place. This did not prevent a disclosure analyst from justifying the decision to disclose on the misleading basis that “His employers deemed it serious enough to report to the police for assistance” (Paragraph 18).The disclosure analyst, a quality assurance officer, a DBS manager and an officer to whom the chief constable had delegated the disclosure decision, all considered that the need to make disclosure outweighed SD`s right to respect for private life with reference to the “potential risk” posed by him. It was considered to be a fair opportunity for SD to defend against the allegations that the representation he made denying the alleged comments and claiming that the statements given in the investigation amounted to hearsay and collusion, was included in the disclosure. The Oxford English Dictionary defines “potential” as “Having or showing the capacity to develop into something in the future.” And “risk” as “The possibility that something unpleasant or unwelcome will happen”. Therefore it can be deduced that those involved in deliberating the decision to disclose stated that they felt that SD`s employment with children had the capacity to develop into something that could possibly have been unpleasant or unwelcome, and the court`s view was that this justified disclosure of the allegations. Only because the disclosure decision failed to take account of or refer to the finding of the Independent Safeguarding Authority that SD should not be barred from working with children was the disclosure held to be a disproportionate infringement of his right to respect for private life under Article 8.
The collation of soft intelligence lends itself to various explanations other than an applicant`s propensity to commit crime. Furthermore without applying the bar of a standard of proof, what may seem from non-conviction information to be an emerging pattern of an individual`s criminal behaviour may in fact be evidence of an innocent person`s propensity to become suspected of crime or complained of to the police. When an individual faces the punitive consequences of the disclosure of non-conviction information for merely becoming involved with the criminal justice process due to; the nature of the allegation and the circumstances he happens to be accused within, the respective social status of the applicant and the accuser(s) and the evidence in support of his innocence not being ascertained or ascertainable, it is not possible for the criminal justice system to operate properly with the due process protections from the state and the individual who works or desires to work with the vulnerable is not properly safeguarded from wrongful conviction. Recent revelations regarding the culture of police inhibiting the access of defence counsel to evidence which undermines the prosecution not only make it extremely naïve to rely upon them to provide a balance of information or to be honest in justifying their decision when disclosing their intelligence but raise serious concerns about the safety of an unquantifiable number of actual convictions attained in this way. The QAF and statutory disclosure principles are an inadequate substitute for a fair trial process and in re-framing the question of whether an applicant is known to have committed a relevant breach of the law to whether relevant information ought to be disclosed in the chief officer`s opinion there is too much subjectivity within the assessment of risk posed by the applicant. As a result the applicant about whom non-conviction information is held is offered no clarity with which to inform his decision whether to undergo an ECRD check. The person in such a predicament is subjected to a disproportionate interference with his right to respect for private life under Art 8 HRA 1998 by the prospect of disclosure or the actual disclosure, of non-conviction information . For many, this interference will impact on the ability to support their family.
The use of non-conviction information within the ECRD is not based on any sound moral argument or evidence of necessity which is why such a justification is noticeably absent in the literature endorsing its use. This irrationality is borne out in the development of differing judicial approaches where non criminal allegations remain disclosable but criminal offences are being increasingly filtered from disclosure. In the disclosure decision regarding non criminal non conviction information the conflict with the guidance is irreconcilable. While the statutory guidance states that personal opinion as to the applicant`s suitability for the prescribed purpose of a position should not be included47 this is an illusory restriction which serves to obfuscate the impracticability of an objective standard by which disclosure operates as the very decision to disclose information that does not constitute a suspicion of crime based on considerations of risk can only be based on the disclosing police`s opinion as to the applicant`s suitability. This allows the decision maker to give effect to any privately held prejudices under the cover of his conclusion from an assessment of risk in spite of his adherence to the QAF. As non-conviction information relating to an individual who is not suspected of crime is not relevant for the purpose of a prosecution against him within the criminal justice process it should not be relevant for disclosure outside of the process for the purpose of employment vetting. It is the business of the employer in the management of his private relationship with the prospective employee to conduct suitability assessments through interviews, references, checking membership of professional bodies and checking with industry regulators, rather than for the public body whose role is the detection and prevention of crime to provide non-criminal information which essentially amounts to little more than controversial bad character evidence.
The shocking case of Nigel Lang who was wrongly accused of downloading child pornography made national newspaper and television news in March 201748 because of the profound injustice of the allegation against an innocent man who was subsequently vindicated when an error in identifying him transpired. He disclosed the turmoil it caused in his life regarding his career and employability, the damage to his reputation and anxiety he felt as a potential target of vigilante gangs. However the emotive reaction did not lead to any commentary regarding the inevitable and innumerable others who have fallen foul to false sexual allegations carrying the same stigma, harm to employability and reputation who were not ever proven innocent, publicly vindicated or compensated for their ongoing turmoil. These injustices have been tacitly accepted as collateral damage of the enhanced level of disclosure that is believed to be necessary in order to adequately protect children and vulnerable adults.
The reliance on non conviction information is driven by an instinctive desire to prevent atrocities such as the soham murders from re-occuring and critics of the ECRD regime risk appearing to be incompassionate by compromising the safety of the vulnerable in suggesting a scaling down of disclosure which has no doubt influenced the tone of the reviews into its use. The misconceived populist view that such a regime is reliable does not account for the innumerable known cases where murderers and serious sexual offenders had no history of suspicions reported to the police and the lack of predictive value of criminal records49 . Such a desire to find solutions to prevent the most undesirable of offences continuing despite the use of a methodology unsupported by evidence, can be seen in the wilful ignorance of the evidence showing that group rehabilitation therapy for sex offenders actually increased the risk of re-offending50 and in failing to be honest about the efficacy of prevention methods the problem of offending has been exacerbated. The only practical method of identifying the offending of criminal actors such as Huntley or the likely offender applicant for the tennis coach position referred to in The Mason Report is through the prosecution of allegations in which the cross admissibility of evidence can be utilised so that information which reliably indicates a suspected pattern of criminal behaviour can be scrutinised with procedural fairness to see if it satisfies the criminal standard of proof. The solution from there on lies within the effectiveness of sentencing. It cannot lie within any policy regarding employment vetting however extensive the level of information disclosed.
When cornered with these inconvenient facts proponents of extensive police vetting schemes often resort to the moral argument that if it prevents just one tragedy from occurring then it is justified. The problem is that even if it does prevent such a tragedy, that is not all that it will do. How can the harm to innumerable people`s lives be measured against the potential avoidance of an atrocity? The same rationale could be applied to justify any incursion on our freedoms that will not apparently result in the same tragic outcome? The restriction of opportunities and damage to the quality of life caused to those innocent of crime about whom non-conviction information is disclosed surely outweighs the hypothetical scenario in which an individual with a criminal propensity unknown to his employer is able to access a victim through his employment and do to them serious harm especially as he is able to access victims outside of this employment? More pertinently, the social exclusion and stigma engendered by the applicant cannot be ruled out as a contributory cause of offending behaviour. It is more plausible that those whose life opportunities are so restricted, having a justifiable sense of being seriously wronged by their disadvantaged position in society through the disclosure of unproven allegations, are more likely to not adhere to a law-abiding lifestyle than it is that anyone will not offend because disclosure of non conviction information about him was made for a job application. Again, this creates the prospect of the self-fulfilling effect of non-conviction disclosures which give the status of applicants as `less than innocent` 51creating the impression that identifying concerns relating to risk from such information correctly identifies those with a propensity to criminally offend. For those who face the ongoing prospect of non-conviction disclosures continuing to impair their lives the misconceived peace of mind offered by the ECRD regime bears an unjustifiable price for them to pay.
1) The terms “non-conviction information”, “police intelligence” or “soft intelligence” are used interchangeably.
2) Home Office (2012) Statutory Disclosure Guidance. London: Home Office Principle 2 at paragraph 15 states “There are no hard or fast rules to apply in this area, but chief officers should consider whether a specific piece of information is of sufficient gravity to justify its inclusion. It will be disproportionate to disclose information if it is trivial, or simply demonstrates poor behaviour, or relates merely to an individual’s lifestyle”
3) Laura Clark, “Half of men steer clear of children in trouble for fear of being branded paedophiles” Mail online 3rd August 2010, http://www.dailymail.co.uk/news/article-1299818/Half-men-steer-clear-children-trouble-fear-branded-paedophiles.html accessed 4th April 2018
4) Randeep Ramesh, “NSPCC says reports of sexual abuse have soared after Jimmy Savile Scandal” The Guardian online, 31st August 2013, https://www.theguardian.com/society/2013/aug/31/nspcc-reports-sexual-abuse-jimmy-savile, accessed 4th April 2018
5) Katie MacFarlane, The Northern Echo “More than 200 children at risk of sexual exploitation across county Durham” 29th December 2016, http://www.thenorthernecho.co.uk/news/14992091.More_than_200_children_at_risk_of_sexual_exploitation_across_County_Durham/, accessed 4th April 2018
6) Stop and Think: A Critical Review Of The Use Of Stop and Search Powers in England and Wales Equality and Human Rights Commission Published 1st April 2016
7) Ibid (Page 6)
8) Besemer, S., Farrington, D. P., Bijleveld, C. C. J. H. (2013). Official bias in intergenerational transmission. British Journal of Criminology, 53(3), 438-455.
10) According to The Association for Real Change people with autistic spectrum conditions are seven times more likely to come into contact with the police than the general population, young people with learning disabilities are ten times more likely to end up in custody than the general population and represent 30% of people in custody. Roderick Landman “People with learning disabilities in the criminal justice system: a guide for carers and learning disability services” March 2016, Page 6 http://arcuk.org.uk/wp-content/uploads/2016/04/PWLD-in-the-CJS-Guide.pdf
11) This case was highlighted by Marshall and Thomas as an example of a controversial police disclosure in Marshall D and Thomas T, ‘The Disclosure of Police Held ‘Non-conviction Information’ to Employers’ (2015) 17(4) International Journal of Political Science and Management 237
12) Glen Owen, “Huge rise in divorce claims alleging violence after legal aid was axed except in cases involving abuse” 7th February 2016, The Mail Online, http://www.dailymail.co.uk/news/article-3435462/Huge-rise-domestic-violence-claims-legal-aid-clampdown-Figures-reveal-assault-allegations-doubled-ministers-axed-funding-divorce-cases.html accessed 4th April 2018
13) arrestable under s91(1) The Criminal Law Act 1967
14) Displayed on the windows of various public houses in Darlington County Durham, December 2017.
15) Fionn Hargreaves, “Iceland staff are warned not to share photos of shoplifters and thugs in case it breaches the criminals` privacy” 4th February 2017 mail online, http://www.dailymail.co.uk/news/article-4191750/Iceland-staff-told-not-share-photos-shoplifters.html , accessed 30th March 2018
16) “No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.” Dicey, AV, Introduction to the Study of the Law of the Constitution, 8th ed, 1885, reprint 2001, Liberty Fund Publishing p110
17) “Everyone charged with a criminal offence has the following minimum rights: (a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
18) The 2012 Mori research report on behalf of the Criminal Records Bureau stated that 37% of job offers that were withdrawn were due to non-conviction information as noted by Appleton J (2014) Checking Up. London: Civitas. Marshal and Thomas noted “Some employers give these disclosures only cursory attention and some act simply on just the existence of information – `hard` or `soft`- wanting a completely clear criminal record sheet” Marshall D and Thomas T, ‘The Disclosure of Police Held ‘Non-conviction Information’ to Employers’ (2015) 17(4) International Journal of Political Science and Management 237.
19) Avoiding litigation through offering representation was considered an important practical consideration by the Court of Appeal in R (on the application of C) v Chief Constable of Greater Manchester Police (2011) EWCA Civ 175, Paragraph 13.
20) “This is because the role of police investigations in an adversarial system is not to find evidence that suspects of crime are innocent, but, rather, to treat situations that they are called to as potential crime scenes and seek evidence that incriminates suspects for alleged criminal offences to pass to the Crown Prosecution Service (C.P.S) to supply a criminal charge.” “How The Presumption of Innocence Renders The Innocent Vulnerable To Wrongful Convictions” M Naughton - Irish Journal of Legal Studies Vol, 2011 Page 43 Vol 2(1)
21) This would be consistent with the views expressed by The Master Of The Rolls Lord Dyson in R(T) v Chief Constable of Greater Manchester. At Paragraph 31 he opined that once a conviction recedes into the past it amounts to part of the individual`s private life and that a caution was a private matter from the outset. By this understanding an allegation that never underwent a public hearing should also be regarded as a private matter.
22) Examples include the policy of “positive arrest” whereby the Police attending incidents reported to involve domestic violence would aim to carry out an arrest to demonstrate their proactivity and the crown prosecution service deciding to pursue a charge in domestic violence allegations as a precaution for the avoidance of potential criticism if a serious assault subsequently occurs in circumstances where the court is likely to exercise its power to dismiss the allegation without undergoing a trial hearing.
23) Page 7 Box 6, of MP7a https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/295392/DBS_Applicant_s_introduction_to_QAF_March_2014.pdf, accessed on 30th March 2018
24) The absence of untoward circumstances was considered sufficient to justify disclosure of an allegation which “might be relevant” by Lord Wolfe MR at Paragraph 41 in R (x) v Chief Constable of West Midlands Police  1 WLR 65, an approach later criticised for not attaching enough weight the additional question of whether disclosure ought to be made by Lord Neuberger in R(L).
25) Mario Ledwith, “Private school teacher cleared of sex abuse left ruined by £195,000 legal costs: Friends say geography tutor`s ordeal has left him `crushed by stress`. 1st August 2016, Mail Online, http://www.dailymail.co.uk/news/article-3717456/Private-school-teacher-cleared-sex-abuse-left-ruined-195-000-legal-costs-Friends-say-geography-tutor-s-ordeal-left-crushed-stress.html accessed 31st March 2018
26 BBC News “All current rape cases to be `urgently` reviewed over disclosure fears” 27th January 2018 https://www.bbc.com/news/amp/uk-42841346 accessed on 4th April 2018
27) Frances Gibb Legal Editor, “Police are trained to hide vital evidence”, The Times, 3rd April 2018 https://www.thetimes.co.uk/article/police-are-trained-to-hide-vital-evidence-cnfdbm6jz , accessed 3rd April 2018)
28) In some cases applicants were citing these paragraphs as reasons why they had lost a job or had been unsuccessful in an application rather than the presence of the actual information about them on the certificate.” (IM Annual Report 2015 Page 2
29)https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/452321/6_1155_HO_LW_Stat_Dis_Guide-v3.pdf , accessed 1st April 2018
30) Physical, sexual, psychological, discriminatory, organisational, domestic violence, modern slavery, financial and material, neglect and self-neglect.
31) “Jobseekers required to use Universal Jobmatch” Department ForWork and Pensions and Employment Minister Mark Hoban, 4th March 2013 Notes to editors: 6 https://www.gov.uk/government/news/jobseekers-required-to-use-universal-jobmatch , accessed on 31st March 2018.
32) Jobcentre staff rely on Paragraphs 86 and 87 of The Universal Jobmatch (UJ) Toolkit in requesting printed copies of the information held on the account.
33) “Universal Credit and Your Claimant Commitment” Department For Work and Pensions, 11th April 2016 (Section 4 “Not meeting your responsibilities” https://www.gov.uk/government/publications/universal-credit-and-your-claimant-commitment-quick-guide/universal-credit-and-your-claimant-commitment), accessed 31st March 2018
34) This could be Fraud by failing to disclose information under s3 The Fraud Act 2006.
35)as expressed by Lord Neuberger in R(L) at Paragraph 75 to describe an adverse disclosure within an ECRC. “something close to a killer blow to the hopes of a person who aspires to any post”.
36) Voluntary Action Research, Second Series, Paper no. 2, Criminal checks within the voluntary sector, an evaluation of the pilot schemes’, by Judith Unell, The Volunteer Centre UK (evaluation commissioned by the Home Office), 1992 . This was highlighted in Appleton J (2014) Checking Up: London Civitas Page 29.
37) Mason S (2011) A Common Sense Approach: A Review Of The Criminal Records Regime In England And Wales - Phase 1. London: Home Office.
38) The Protection of Freedoms Act 2012 Part 5 Chapter 2 s82(1)(c) changed the test of relevance from a question of what “might be relevant” to whether it is information which the chief officer “reasonably believes might be relevant” into s113B(4)(a) The Police Act 1997.
39) Mason S (2010) A Balanced Approach: Safeguarding The Public Through Fair and Proportionate Use Of Accurate Criminal Record Information. London: Home Office.
40) M Bichard The Bichard Inquiry Report. London Stationery Office, 2004
41) (Appleton J (2014) Checking Up. London: Civitas Pg 45)
42) M Bichard The Bichard Inquiry Report. London Stationery Office, 2004, (1.43)
43) Ibid (1.82)
44) Ibid 2.90.3
45) Ibid 2.90.4
46) Which merged with the criminal records Bureau to become the DBS in December 2012
47) Principle 7 at Paragraph 32 includes the instruction that “Personal opinions as to an applicant’s suitability for a prescribed purpose should not be included”. Home Office Statutory Disclosure Guidance Second Edition August 2015 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/452321/6_1155_HO_LW_Stat_Dis_Guide-v3.pdf
48) Adam Eley and Jo Adnitt “My life was ruined by a typo” BBC Victoria Derbyshire programme 21 March 2017 http://www.bbc.co.uk/news/uk-39328853 accessed on 4th April 2018
49) As was noted in William Noble, Andrew (2016), We Know What you did Last Summer, and 30 Years ago: Criminal Records Disclosure and State Regulatory Discretion. Journal of Information Rights, Policy and Practice; ”There is a growing body of research which suggests that after a certain period of non-offending, criminal records are of little predictive value as to future offending.” K Soothill and F Brian, “When do Ex-offenders Become Like Non-offenders?” (2009) 48(4) The Howard Journal 373; SD Bushway, P Nieuwbeerta and A Bickland, “The Predictive Value Of Criminal Background Checks; Do Age and Criminal History Affect Time to Redemption?” (2011) 49(1) Criminology 27.
50) David Rose “The Scandal of sex crime `cure` hubs: How Minister Buried report into 100 Million prison programme to treat paedophiles and rapists that increased reoffending rates” Mail Online http://www.dailymail.co.uk/news/article-4635876/Scandal-100million-sex-crime-cure-hubs.html accessed 5th April 2018
51) A term used to describe those against whom non conviction information was disclosed in Campbell, Liz (2013). Criminal Labels, the European Convention on Human Rights and the Presumption of Innocence. Modern Law Review 76(4): 681-707. Page 22)