Employment Screening and Non-Conviction Information: A Human Rights Perspective

179 Pages·2019·1.587 MB·English

by  Terry Thomas, Kevin Bennett

Employment Screening
and Non-Conviction
Information
A Human Rights Perspective
Terry Thomas · Kevin Bennett
Employment Screening and Non-Conviction
Information
Terry Thomas · Kevin Bennett
Employment
Screening
and Non-Conviction
Information
A Human Rights Perspective
Terry Thomas Kevin Bennett
Leeds Beckett University University of Sunderland
Leeds, West Yorkshire, UK Sunderland, UK
ISBN 978-3-030-28710-8 ISBN 978-3-030-28711-5 (eBook)
https://doi.org/10.1007/978-3-030-28711-5
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Preface
During the summer of 2018, a man appealed to the UK Supreme
Court that his right to privacy under Article 8 of the European
Convention on Human Rights had been breached. In 2011, the man—
known only in the Supreme Court as AR—had been acquitted of rape
by Bolton Crown Court in Lancashire. Following his acquittal, he later
applied for a job as a lecturer. This application required him to agree
to an Enhanced Criminal Records Certificate being made on him. This
check confirmed that he had no criminal record history, but the same
check did disclose the information about his court appearance and
acquittal to his potential employer. He did not get the job.
The Supreme Court ruled that details of the acquittal had been prop-
erly disclosed by the police to the employer as part of the job appli-
cation. The Crown Court hearing and the acquittal were held to be
matters of public record and might well be relevant to the job being
applied for.
Lord Carnwath, delivering the unanimous ruling of the Supreme
Court, said:
v
vi Preface
Given that parliament has clearly authorised the inclusion in ECRCs
[Enhanced Criminal Record Certificates] of ‘soft’ information, including
disputed allegations, there may be no logical reason to exclude informa-
tion about serious allegations of criminal conduct, merely because a pros-
ecution has not been pursued or has failed …
but he added:
We have been shown reports which emphasise the importance of not
excluding the convicted from consideration for employment, but they
say nothing about the acquitted, who surely deserve greater protection
from unfair stigmatisation (R (on the application of AR) (Appellant) v Chief
Constable of Greater Manchester Police and another (Respondents) [2018]
UKSC 47 On appeal from: [2016] EWCA Civ 490 paras.74 and 75; see
also Bowcott 2018)
The acquittal was an example of ‘non-conviction information’ held
by the police. This case was just the latest of a number of challenges,
over the years, to the disclosure of ‘non-conviction information’ as
part of an Enhanced Criminal Record Certificate. The Supreme Court
hearing threw light on this low visibility police activity of disclosing
‘non-c onviction information’ alongside criminal records as part of a
pre-employment screening exercise. In 2015, the Disclosure and Barring
Service (DBS) processed 4.2 million applications for criminal record
disclosures with 358,000 revealing ‘other non-conviction information’
(House of Commons 2017: 2).
This book outlines the development of the current systems of disclo-
sure of both criminal records and ‘non-conviction information’ held by
the police to employers and how the two run side by side. It considers
some of the factors which contribute to the susceptibility of individu-
als 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 the concerns of risk from the collation of this
information. It examines the effect that the potential for disclosure of
this information through the ECRC regime has on the operation of the
Preface vii
criminal justice process, the tension between the suspected individual
exercising his or her right to silence and the implications for doing so
for his or her employability in certain areas.
The authors consider to what extent the job applicant is assisted by
the provision of guidance to make their 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. The rationale contained in the literature which endorses the use
of ‘non-conviction information’ within the ECRC regime is examined
to see how this may attempt to justify prejudicing the applicant on the
basis of unproven or non-criminal allegations.
The case of R (on the application of SD) v Chief Constable of North
Yorkshire [2017] EWCA Civ 1838 where even the suspicion of inappro-
priate behaviour was considered a justification for disclosure, and how
the practice of disclosing ‘non-conviction information’ arguably fails to
strike a fair balance between protecting children and vulnerable people,
and the right to respect for the applicant’s private life under Article 8 of
the European Convention on Human Rights. This case will be discussed
later in the book (see Chapter 6).
The overall attempt is to throw more light on to this whole prac-
tice and to provide a perspective on the use of ‘non-conviction infor-
mation’ through the Enhanced Criminal Records Certificate (ECRC)
regime under Part V of the Police Act 1997 for employment in a ‘reg-
ulated activity’; a ‘regulated activity’ is one which involves close contact
with children and vulnerable adults. The legal context and the historical
background of this disclosure practice and the guidance that surrounds
it are also considered.
Chapter 1 outlines the development and current operation of the sys-
tems in place to disclose criminal records to employers for the purposes
of employment screening. It was felt important to include Chapter 1
as the primary system on to which the secondary—but arguably more
controversial—‘non-conviction information system’ has been added.
Chapter 2 of the book tries to answer the question of just what
is the nature of ‘non-conviction information’. Chapter 3 looks at
viii Preface
‘non-conviction information’ disclosure to employers from 1986 to
2010, and Chapter 4 continues the story from 2010 to the present day.
Chapter 5 looks at how the actual disclosure decisions are taken and the
formal guidance available to those senior police officers who must take
these decisions; Chapter 6 examines the human rights elements that are
engaged. The final Chapter—Chapter 7—attempts some concluding
thoughts.
Leeds, UK Terry Thomas
Sunderland, UK Kevin Bennett
References
Bowcott, O. (2018, July 30). Court Allows Police to Reveal Acquittals During
Record Checks. The Guardian.
House of Commons. (2017, January). Criminal Records Disclosure:
Nonfilterable Offences. Law Commission (HC971). London: HMSO.
Contents
1 The Disclosure of Criminal Records to Employers 1
Introduction 2
The Early Days 2
The Rehabilitation of Offenders Act 1974 5
The Expansion of the Disclosure System After 1986 7
‘On the Record’ and the Police Act 1997 10
The Criminal Records Bureau (CRB) 13
The Vetting and Barring Scheme (VBS) 15
The Coalition Government 16
The Disclosure and Barring Service (DBS) 17
The ‘Filtering’ of Criminal Records 20
Summary 24
References 24
2 The Nature of ‘Non-conviction Information’ 29
Introduction 30
‘Hard’ Information 30
The Police National Computer 30
‘Soft’ Information 32
ix
x Contents
The Police National Database 34
The Law Enforcement Data Service (LEDS) 35
Sources of Police ‘Soft’ Information 37
Safeguarding of Children and Young Persons 37
Anti-social Behaviour 39
Sex Offenders and Other Violent People 40
Voluntary Organisations 41
Other People ‘Known’ to the Police 43
Summary 48
References 48
3 The Police Disclosure of Non-conviction Information
to Employers (1986–2010) 51
Introduction 52
The 1985 Joint Review and 1986 Home Office Circulars 52
Did We Need ‘Non-conviction Information’? 55
‘On the Record’ 58
The Police Act 1997 60
R(X) v Chief Constable of the West Midlands Police [2004]
EWCA Civ 1068 62
The Bichard Inquiry 2004 63
Home Office Circular No. 5/2005 64
The Code of Practice on the Management of Police
Information (MOPI) 66
R(L) v Chief Constable of Metropolis [2009] UKSC 3 67
Summary 68
References 68
4 The Police Disclosure of Non-conviction Information
to Employers (2010–to the Present Day) 71
Introduction 72
The Mason Reports (2010–2011) 72
The CRB Role in the Disclosure of ‘Non-conviction
Information’ 77
The Protection of Freedoms Act 2012 79
The Independent Monitor 79