Criminal Records Bureau and CPO Discretion
One of the first decisions of the new UK Supreme Court L, R (on the application of) v Commissioner of Police of the Metropolis  UKSC 3 (29 October 2009) will offer some welcome reprieve to social care workers and would-be social care workers who have discovered the devastating effects of “information disclosed at the Chief Police Officer’s discretion” – on an enhanced CRB. There is now a way of fighting back.
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:
‘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)
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.
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