Should we have known?

The Bichard Inquiry opened its deliberations on 13 January, and
will examine how convicted child killer Ian Huntley managed to get
a job working with children when information was already available
to suggest he was unsuitable.

In particular the inquiry is looking at how Humberside and
Cambridge police handled the “soft” information available to them
which could have informed those considering employing Huntley.
Employers of people having access to children use “hard” criminal
records and cautions to ratify appointments but they are also
allowed to see soft non-conviction information such as
allegations.

The nature of soft information has always been contentious. What it
is and how it is used in employment screening has never really been
the subject of any public debate. In the past it has been
criticised for being irrelevant and preventing perfectly good
candidates from getting jobs – in the Huntley case it was the other
way round. Chairperson Sir Michael Bichard – a former local
authority chief executive – is investigating the period from 1995
to the time of Huntley’s appointment in 2001. These were before the
days of the Criminal Records Bureau when police checks were local
arrangements with local police forces carried out in accordance
with Home Office circulars.

Two circulars were issued on the same day in 1986 when police
checks on child care workers first started. One went to local
authorities, and made no mention of the fact that non-conviction
information could be disclosed. The other went to the police and
advised them that such information could be disclosed.

Who exactly decided that soft information could be passed to
employers is uncertain. The 1985 Home Office/Department of Health
and Social Security working party that had reported on how police
checks could best be introduced made no mention of the idea of
releasing soft information.

A second circular to local authorities in 1988 formally told them
about the availability of soft information which the Home Office
now called “other relevant information”. In practice local
authorities must have known about it, because they had been
receiving it for two years with the police acting on their 1986
circular.

The Home Office now described “other relevant information” as
“factual information which the police would be prepared to present
as evidence in court, or details of acquittals or decisions not to
prosecute where the circumstances of the case would give cause for
concern”.

This was still the wording in a third Home Office circular in 1993.
This circular was the operative guidance during Huntley’s
recruitment and selection in 2001.

The nature of soft information has never been fully researched.
Examples of it have surfaced from time to time, and included:

• Child abuse charges dropped because of technical reasons, for
  example a child too young to give evidence.
• Someone owning property known to be used by drug dealers and
  users.
• Someone known to associate with other sex offenders.
• Someone abused as a child and therefore – by police reasoning –
  likely to become an abuser themselves.¹

What discussions there have been on the subject – and they have
been few and far between – have raised issues of civil liberties
and the fact that people are innocent until proved guilty.

The use of soft as well as hard information is part of a wider
trend that increasingly sees no need to distinguish criminal
activities from non-criminal activities, a view summed up as: “We
know you did it – even if the court acquitted you”. Clearly, some
acquittals are better than others.

When the sex offender register was being devised we saw at least
one child care organisation lobbying – unsuccessfully – to have not
just the convicted on the register, but also suspects. We have seen
the confusion of criminal activity with the ill-defined category of
antisocial behaviour, which inevitably includes some non-criminal
behaviour, and we have seen the imprisonment of women for murdering
their children based on the word of experts rather than substantive
evidence.

In 1990 the House of Commons home affairs select committee
recommended that the disclosure of soft information should stop; in
fact nothing changed. The consensus appeared to be that common
sense should prevail and as long as the information was handled
sensitively everything would be all right.

If anything, decision-making in this area got more cautious in the
middle to late 1990s as anxiety levels about abuse in the workplace
rose steadily. Some wondered if this was child protection coming to
the fore, or organisation protection.

The Police Act 1997 which ultimately led in 2002 to the Criminal
Records Bureau partially took screening out of the shadowy world of
circulars and put it on a statutory basis. “Other relevant
information” now got renamed as “Additional” or “Approved”
information. It was still going to be held locally – because that’s
where the police need it – and the CRB would expect to receive it
from local forces on request, for use with the enhanced checks
needed for child care posts.

What remains in the shadows is the use that social services
departments and other agencies – as employers – make of soft
information when they are in receipt of it. How are decisions made
to link the soft information to the post that needs filling? What
sort of risk assessment is being made relating the work role to the
reported behaviour? The fear is that no link is being made and
decisions are made more on the lines of “don’t like the look of
this – better not take any chances”, rather than any attempt at a
considered proportionate response.

Formal policies on how decisions should be made on the basis of
soft information – and indeed criminal records themselves – are
conspicuous by their absence and just a change in the
decision-making personnel can lead to variation from hard-line to
liberal or vice versa.²

The fact that these decisions are of low visibility and made behind
closed doors only increases the sense of there being no real
accountability here, as well as no meaningful form of redress for
an aggrieved applicant.

The Bichard Inquiry is concerned with the movement of soft
information and will not be looking too hard at the receiving end
of that movement. Maybe it is a good time, nonetheless, for those
who have happily been interpreting soft information – and criminal
records – since 1986 to come out into the open and start a public
debate on just how they do it. 

Terry Thomas, reader in social work, Leeds Metropolitan
University.

References

² J Smith, “Prior criminality and employment of social
workers with substantial access to children: a decision board
analysis,” British Journal of Social Work 29: 69-95,
1999