A few days ago, the Court of Appeal finally handed down a ruling which confirms what many of us knew even before the current system of Criminal Records Bureau checks was introduced, that the system as created by New Labour was excessive, disproportionate and flagrantly in breach of Article 8 of the European Convention on Human Rights.
Blanket criminal records checks are not “compatible” with a key part of the Human Rights Act, the Court of Appeal has concluded.
The checks, known as CRBs, may prevent a persons right to a private or family life, a draft judgement has found.
The ruling was made based on the case of a 21-year-old man, who had been forced to reveal details of two police warnings given to him a decade earlier.
The Master of the Rolls, Lord Dyson, said the CRB system must be reformed.
The draft judgement was made on 21 December 2012, but was not revealed at the time amid concerns about its implications for the government over the CRB system.
To be absolutely clear, at the time that this system was introduced I was working in the voluntary sector providing advice and support to local charities on everything from charity law to employment practices, etc, and in that role I attended several ‘consultation events’ organised by the Home Office. Well, that’s the Home Office called these events, although there was no actual consultation at any of them, just a rose-tinted presentation telling us how wonderful this new system would be followed by an open Q&A in which the Home Office’s representatives did their best stay on message while being ripped to shred by members of audience who could see, perfectly well, that the system was excessive, grossly intrusive and wide open to abuse.
They didn’t listen then, which is why this case has ended up before the Court of Appeal and it would appear that they’re still not listening even after a Court has intervened.
The government is to seek leave to appeal against a court ruling that the law which requires people to disclose all previous convictions to certain employers is a breach of human rights.
The Court of Appeal ruling could mean job applicants in England and Wales do not have to disclose all criminal records when applying for certain jobs.
But a government spokesman said: “The protection of children and vulnerable groups must not be compromised. We are disappointed by this judgement and are seeking leave to appeal to the Supreme Court.”
Compromised by what? Your own incompetence?
After the system was introduced I spent a number of years supporting local charities when they carrying out CRB checks on job applicants, in most cases as an independent member of an ad-hoc risk assessment panel assessing individuals whose record had come back with adverse information on it.
To be clear about how the system works, when an employer requests as CRB check the first thing they’re told is only whether or not the Criminal Records Bureau has any relevant information on file for a particular individual and not what information might be. If the check comes back with an indication that there is adverse information on file then the employer has to apply for relevant certificate and then decide for themselves whether or not this information contained on it is, or isn’t, relevant to the role for the individual has applied.
Employers do not receive any help or guidance on how to go about making those kinds of decisions or how to decide which information may or may not be relevant and, in the voluntary sector, practice can vary considerably from organisation to organisation. Larger organisations tended to put in place a formal process with a scoring system for assessing any risks that might be evident and the best ensured that these risk assessments were conducted independently of the main recruitment process, so any staff involved in short-listing or conducting interviews would not be aware that an applicant had anything on their record. Smaller organisations would usually deal with things on an ad hoc basis, leaving decisions to the discretion of a manager or a couple of committee members and that’s where I usually entered the picture. I’d get a call from an organisation to say that they’d been notified of the existence of adverse information relating to an existing employee or a job applicant and they didn’t really know what to do next or how to go about dealing with the information they were being sent.
It was all a bit of lottery and my role was to go in and at least try to apply some common sense to the decision making process.
What I actually saw, when carrying out these assessments over a period of maybe 3-4 years was the criminal histories of, for the most part, women aged anywhere from their mid 20s to the late 40s who were working in or applying for low paid jobs as carers, home helps and various other type of support workers. Some were married or cohabiting, some weren’t and the vast majority had children.
In terms of what was on their records, anything from 1-3 minor offences was typical with the most common offences being shoplifting, handling stolen goods, fiddling the dole for small amounts, possession of small amounts of cannabis for personal use, the occasional common assault and, in some cases even getting caught without a TV licence. Only very rarely did I come across anyone who’d received any kind of custodial sentence and, more often than not, even that had been a suspended sentence. For the most part any sanctions on their records tended to be cautions, small fines or community service orders, which is is hardly surprising as a high proportion of the offences listed had been committed while these women were either juveniles or in their late teens. Few had anything on their record that was less than five years old. More often than not what I was being asked to assess as potential risks were offences that at least 10-15 years old, if not more, in fact just the kind of offences that these women would not have been required to disclose at all under the Rehabilitation of Offenders Act.
Looking back, at no time did I ever feel that the system was doing anything to protect children or vulnerable adults, not by disclosing information to employers that was almost entirely outdated, trivial and irrelevant. Maybe I’m just lucky in that, having dealt with easily over a hundred and probably close to a hundred and fifty CRB checks, I’ve never once had to recommended that an applicant shouldn’t be put forward for short-listing or interview because of anything on their record, but even if I had it wouldn’t change my views on the operation of the system as a whole. It was, and is, far too intrusive. It gives employers far too much irrelevant but potentially damaging information and the very fact of having to go through the motions of deciding that’s its safe to employ a middle-aged woman with a family despite their being a couple of 20 year old shoplifting offences on their record, purely for the sake of keeping the paperwork in good order, just felt squalid, voyeuristic and unnecessary.
I hated doing CRB checks and, for that reason, I fully welcome and support the Court of Appeal’s decision, which I fervently hope the Supreme Court will uphold and I’m deeply disappointed to see that the government has seemingly chosen to waste further time – and taxpayers money – on an appeal rather than pull their finger out and change the system to bring it into line with article 8, not least because the existing provisions of the Rehabilitation of Offenders Act provide a ready starting point for such changes when it comes to minor offences.
There are, of course, some offences that should always be disclosed irrespective of any sentence handed down on conviction, particularly sexual offences, although even there there is some need for caution as it has to be remembered that there are gay men out there with convictions on file for offences that no longer exist, an issue that’s cropped up recently in a very different context:
Excellent news – following Peter Tatchell’s article for the New Statesman website on how men convicted of homosexual offences decades ago were being threatened with arrest if they refuse to provide samples for the national DNA database, new guidance has been issued to chief constables that no new samples should be taken and those already taken reviewed and possibly destroyed. Previously, men convicted of consenting behaviour under the now-repealed offence of “gross indecency” had been asked to provide samples.
Clearly the same principle should apply to the disclosure of such offences through the CRB system and similar caution may also need to be exercised where individuals have been convicted as juveniles for consenting behaviour, again taking particular account of changes in the age of consent for homosexual relationships.
So there are few complications and wrinkle to be ironed out by Parliament but, so far as I can, nothing so complex that that it cannot be readily dealt with with just a little bit of thought, consideration and careful reasoning – nothing, in fact, that should have taken a competent government more than the month or so they’ve had since the draft judgement was issued at the end of December.
If, of course, we had a competent government in the first place…