by Allan Norman
The problem
The problem - because there most certainly is one - can be summarised as follows:
- The use of enhanced CRBs is growing dramatically - nearly 275,000 were issued in 2008-09
- The Police, if in doubt about the relevance of information, are likely to include it - saying, correctly, that it is for the organisation to whom it is disclosed to make decisions about suitability, not them
- Employers and agencies are likely to err on the side of caution when an enhanced CRB raises concerns
- All this has a devastating effect on the 10% or so of applicants in respect of whom enhanced information is disclosed.
There is a real dilemma here. Following the Soham murders of Holly Wells and Jessica Chapman and the subsequent Bichard Inquiry, emphasis was placed on revealing non-conviction information that might have prevented such horrors taking place. Guidance issued following an earlier court case gave precedence to child protection concerns over the rights of a would-be social care worker.
It was once held "that it is better that ninety-nine ... offenders shall escape than that one innocent man be condemned."*; our anxiety over the risks to children now seems to mean that we have reversed the ratio.
The court's decision
A clear majority of the court held that the earlier court case and guidance were wrong, erring too much in favour of disclosure in borderline cases. In future, greater weight must be given to the effect on the CRB applicant and on their career. Specifically, the court said that it was not unreasonable for the CRB applicant to be contacted and their views sought before disclosure, and even indicated this would be the norm, rather than the exception, in future. Thus, Lord Neuberger:
Analysis
For the many people affected, this re-balancing exercise is welcome. However, it only addesses the tip of the iceberg of the original problem.
First, the exponential growth in the use of enhanced CRBs is itself questionable. Employers are legally bound by a Code of Practice, but many think that 'safe' practice means asking for an enhanced check even when they have no right to do so, and there is no effective remedy for illegal enhanced CRB checks.
Second, the 'soft' information included is generally untested. Untested allegations may be completely right, but they may be completely wrong. A person may be a wholly innocent suspect, the subject of a malicious allegation, the victim of mistaken identity. It remains to be seen how far representations that this is the case will affect police decisions on disclosure in future.
Finally, however, there needs to be a proper understanding of the system to ensure a robust and fair decision making process by employers and agencies. If those who receive such disclosures assume the disclosure of 'soft' information is proof of its veracity, or of a person's unsuitability, or if they abrogate responsibility for making such decisions at all, and in a risk-averse age simply say 'no, thank you', there will still not be justice.
* Thomas Starkie, A Practical Treatise on the Law of Evidence, 1824
It was once held "that it is better that ninety-nine ... offenders shall escape than that one innocent man be condemned."*; our anxiety over the risks to children now seems to mean that we have reversed the ratio.
The court's decision
A clear majority of the court held that the earlier court case and guidance were wrong, erring too much in favour of disclosure in borderline cases. In future, greater weight must be given to the effect on the CRB applicant and on their career. Specifically, the court said that it was not unreasonable for the CRB applicant to be contacted and their views sought before disclosure, and even indicated this would be the norm, rather than the exception, in future. Thus, Lord Neuberger:
'I would have thought that, where the chief officer is not satisfied that the applicant has had a fair opportunity to answer any allegation involved in the material concerned, where he is doubtful as to its potential relevance to the post for which the applicant has applied, or where the information is historical or vague, it would often, indeed perhaps normally, be wrong to include it in an ECRC without first giving the applicant an opportunity to say why it should not be included.' (para 82)
Analysis
For the many people affected, this re-balancing exercise is welcome. However, it only addesses the tip of the iceberg of the original problem.
First, the exponential growth in the use of enhanced CRBs is itself questionable. Employers are legally bound by a Code of Practice, but many think that 'safe' practice means asking for an enhanced check even when they have no right to do so, and there is no effective remedy for illegal enhanced CRB checks.
Second, the 'soft' information included is generally untested. Untested allegations may be completely right, but they may be completely wrong. A person may be a wholly innocent suspect, the subject of a malicious allegation, the victim of mistaken identity. It remains to be seen how far representations that this is the case will affect police decisions on disclosure in future.
Finally, however, there needs to be a proper understanding of the system to ensure a robust and fair decision making process by employers and agencies. If those who receive such disclosures assume the disclosure of 'soft' information is proof of its veracity, or of a person's unsuitability, or if they abrogate responsibility for making such decisions at all, and in a risk-averse age simply say 'no, thank you', there will still not be justice.
Allan Norman is Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.
* Thomas Starkie, A Practical Treatise on the Law of Evidence, 1824
Yes, Allan, you are entirely right. I am a pharmacist, one of a group of people similarly affected by creeping ECRB checking. The reality is that pharmacists do not "work" with children or vulnerable adults in any meaningful sense of the word. These people are occasionally sick in our hospital beds, or walk into a public community pharmacy but the staff have no free access to them. Those individuals are not "vulnerable" to predatory pharmacists.
I have a personal vested interest: I was cautioned for common assault many years ago as part of an unpleasant divorce proceeding by a very malicious woman. Subsequently she went on to accuse me of rape. My interview under caution for the second accusation will no doubt form part of any ECRB check that I an subject to.
My current employer has already indicated their intention to call for ISA checks later next year. Thank reason (as opposed to God) for the Supreme Court decision. I suppose that there is a faint chance that the ISA might just issue me with a "clear to work" rating as opposed to a "take out and shoot" one.