The Criminal Records Bureau (CRB) recently indicated that around 176 of the CRB checks it issued last year were inaccurate. That figure is only part of a bigger picture involving thousands of people who are effectively barred from pursuing their chosen career because of untested information which is collated and disclosed by the state.
It is police practice to record not just cautions and convictions, but also allegations and other unsubstantiated information, including data collected on various databases. Much of this information is accessible to the CRB and the Independent Safeguarding Authority (ISA), which operates the vetting and barring schemes.
This follows on from recommendations about information-sharing measures made in 2004 by Sir Michael Bichard. He had been asked to ascertain how Ian Huntley had come to work as a school caretaker, and to ensure that what happened in Soham never did so again.
Evidently we must have effective measures in place to ensure that those employed in certain sectors cannot abuse those positions. However, systems are only as good as the information that they hold.
The current system does not take into account the fact that some of the information held is inaccurate and misleading, stemming from miscommunications, false allegations and mistakes. Such information may lead the ISA to refuse to register a person, so preventing them from working with children or vulnerable adults. It may be disclosed as part of the new ‘Sarah’s Law’ scheme. It might be disclosed to social services or in a visa application. And it may well show up on an Enhanced Criminal Record Certificate (ECRC), which will be required if a person applies for a position in certain sectors, including caring for children or vulnerable adults and certain financial positions.
The CRB will only amend contested information if the police agree that it is inaccurate or irrelevant. Even if the police do agree, by that time it is often too late because the potential employer will already have the information and rejected the applicant. And more often than not the police will refuse to retract the information.
Recently, a client was wrongly described by police as an ‘animal rights extremist’ on an ECRC, which led to her being rejected for a voluntary position. The information disclosed related to her attendance at lawful protests. However, the police only agreed to remove the information once she had been granted permission to bring a judicial review.
In another case, police indicated to a client who was a childcare worker that they would only remove irrelevant information (which related to her former partner) if she backed down on a complaint against the police on a completely separate issue.
Where the police and CRB refuse to amend a certificate, the individual’s only means of redress is judicial review. However, the courts will only interfere if the decision was clearly irrational or otherwise unlawful. The courts have recently confirmed (in L v Commissioner) that the police have a very broad discretion as to what they can include.
In another recent case – Pinnington v Chief Constable of Thames Valley Police – the court rejected the argument that allegations should only be disclosed if there was good cause for believing them to be true. That test makes it all but impossible for allegations to be refuted, because any claim, no matter how absurd, might be true. In that case, it effectively meant that unsubstantiated allegations ended Pinnington’s career.
The CRB report confirmed that hundreds of mistakes are still being made, and that does not take into account the many valid complaints which are not upheld because the police refuse to back down.
It is clear that we must have effective measures for sharing information about potentially dangerous individuals. However, those measures must be proportionate and allow for representations to be made before information is disclosed. Unless the procedures are changed, the careers of many will be ruined for no substantiated reason. And the people who will suffer will be the very children and vulnerable adults that the Bichard report’s recommendations were intended to help.
Anna Mazzola is a solicitor at London firm Hickman & Rose, specialising in civil actions arising from the criminal justice system