The Shadow of the Past

Employment vetting law has been rewritten, warns Timothy Pitt-Payne

In 2004, a woman (“L”) was employed by an employment agency that provided staff for schools. She worked as a playground assistant, supervising children during their lunchtime break. The agency applied for an enhanced criminal record certificate (“ECRC”) from the Criminal Records Bureau (“CRB”). The ECRC did not show any criminal convictions; but it disclosed that L’s son had previously been placed on the child protection register on grounds of neglect, and that he had been removed from the register after being convicted of robbery and given a custodial sentence. Soon afterwards she was told by the agency that it no longer required her services.


 

So far there is nothing unusual about this story. CRB checks are an increasingly common feature of working life. Some CRB disclosures (known as standard disclosures) are confined to information about past convictions held on the Police National Computer (“PNC”), including convictions that have become spent under the Rehabilitation of Offenders Act 1974. Other disclosures—known as enhanced disclosures—may, in addition, include information from local police records about matters other than convictions. Such non-conviction information is sometimes known as “soft intelligence”. It may include information about acquittals, or allegations that have never been the subject of the trial, or even about matters other than allegations of criminal conduct. Standard disclosures are available in all cases where employers are entitled to ask prospective employees about their spent convictions. Enhanced disclosures are available for a wide range of individuals working with children and vulnerable adults. In 2008/09, a total of 274,877 enhanced disclosures were given; and 21,045 of them disclosed soft intelligence.

What is unusual is that L applied for judicial review, challenging the police decision to disclose information about her son. The case reached the House of Lords, where it was heard in July 2009. Judgment was given by the Supreme Court on 29 October 2009: R (on the application of L) v Comr of Police of the Metropolis [2009] UKSC 3, [2009] 3 WLR 1056. Although L’s claim failed on its facts, the Supreme Court’s decision has rewritten the law on employment vetting. Other recent changes to the vetting system, with the establishment of the Independent Safeguarding Authority (“ISA”), make the decision especially significant.


Enhanced CRB disclosure: the law

At the time the agency applied for an enhanced CRB disclosure the law on the issue of an ECRC was contained in s 115 of the Police Act 1997 (“PA 1997”) (now s 113B). Section 115(7) provided that, before issuing an ECRC the Secretary of State (in practice the CRB), shall request the chief officer of every relevant police force to provide any information which in that officer’s opinion: (i) might be relevant for the purpose described in the statement under sub-s (2) [ie the purpose for which the certificate is sought], and (ii) ought to be included in the certificate. Thus s 115(7) provided the basis for the disclosure of soft intelligence. There is nothing in the statute that gives a right for individuals to make representations before the decision to disclose is taken, or to appeal against that decision. If the applicant complains to the CRB (under s 117 of PA 1997) then the CRB’s role is to consider whether the allegation contained in the ECRC was in fact made, not whether it was well-founded: R (on the application of B) v Secretary of State for the Home Dept [2006] EWHC 579 (Admin).
The regime creates serious practical difficulties for individuals about whom disclosures are made. If an allegation is disclosed, there is no easy route for individuals to demonstrate that it is false and to clear their name. In a number of cases, individuals have brought judicial review proceedings challenging the police decision to disclose; so far, such applications have usually failed.


The case law prior to L

Prior to L, the leading case was R (on the application of X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65. The Court of Appeal held that the key question was whether the information “might be relevant” to the purpose for which the certificate was sought: see s 115(7)(a) of PA 1997. Where this was the case, then according to the Court of Appeal, it was difficult to see any reason why the information ought not to be included in the ECRC. The court recognised that there might be situations where it would be disproportionate to disclose, but the tenor of the judgment makes it clear that such cases would be exceptional.

In X the individual had been accused of indecent exposure, but acquitted after the prosecution offered no evidence at trial; and this information was disclosed in an ECRC when the individual applied for a job as a social worker. It was common ground between the parties that disclosure engaged the individual’s right to respect for private life under art 8(1) of the Human Rights Convention. But the approach taken by the Court of Appeal gave little weight to whether the disclosure involved a disproportionate interference with that right.


The decision in L

The first question for the Supreme Court in L was whether the applicant’s art 8(1) right to privacy was engaged. Lord Hope, who gave the leading judgment, accepted that art 8 was applicable in the present case, and that all disclosures of non-conviction information by way of the CRB system would be likely to engage art 8. Essentially this was for two reasons. One was to do with the sensitivity of the information itself. In the present case, the information was about child protection matters that had been dealt with in private. But even if the information was about an event taking place in public (such as an acquittal at a trial), the release of that information from records systematically stored by a public authority would engage art 8. A second reason was to do with the likely effect of disclosure. Exclusion from her chosen employment would come within the scope of the individual’s art 8 rights, as it would affect her ability to form relationships with others and would subject her to a considerable stigma.

The fact that art 8(1) was engaged was not, of course, the end of the story. The question was whether any interference with privacy could be justified under art 8(2). Lord Hope disapproved of the approach taken in X, and the rest of the court (apart from Lord Scott) agreed with him. The question posed by s 115(7)(b) was whether the information ought to be disclosed. Lord Hope held that in every case this would involve consideration of whether there would be an interference with the applicant’s private life, and if so whether it could be justified. A balance needed to be struck between the pressing social need to protect children and vulnerable adults, and the applicant’s right to respect for her private life. X tilted the balance the wrong way, by encouraging the notion that the former took priority over the latter. The correct approach was that neither consideration took precedence over the other. In cases of doubt, the police should give individuals an opportunity to make representations before they decided whether or not to disclose.

One feature of the enhanced disclosure system is that an application for an ECRC can only be made with the individual’s consent. Indeed, as Lord Scott pointed out in L, strictly speaking it is the prospective employee, not the employer, who applies for the certificate. Nevertheless the majority of the court (again with Lord Scott in the minority) considered that this made no difference. Individual consent could not be used in order to justify what would otherwise be a disproportionate interference with privacy rights. Otherwise, it would be very easy for legislation to be drafted so as to circumvent art 8 rights.


The significance of the decision 

The decision in L will have a radical effect on the operation of the enhanced CRB system. It is likely to lead to a much more cautious approach to the disclosure of non-conviction information. There will also be an increased right to make representations before disclosure. In the short term, it is likely to encourage judicial review challenges to enhanced disclosure decisions.

The significance of the decision is increased by the new regime for monitoring those who work with children and vulnerable adults, introduced by the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”). This creates the ISA. The Act is being brought into force in stages; when it is fully in force a wide range of individuals will be required to register with the ISA, based on the frequency or intensity of their work with children or vulnerable adults. According to the government’s own figures, it is estimated that about 11 million adults will have to register with the ISA once the scheme is fully operational.

From 12 October 2009 enhanced CRB checks were extended to individuals seeking to carry out work with children or vulnerable adults falling within the 2006 Act. This is a considerable expansion of the enhanced CRB regime. Hence it is all the more significant, and timely, that the Supreme Court should have revisited the controls on disclosing non-conviction information. The L case will require a significant shift in approach by all of those involved in the CRB disclosure system.

Timothy Pitt-Payne is a barrister at 11KBW. This is an edited version of an article that first appeared in the New Law Journal (6 November 2009).


 

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