Criminal records checks 'unlawful' and 'arbitrary' rules High Court Mandatory pre-employment criminal record checks have been ruled unlawful in the UK, following a ruling today in the High Court. Lord Justice McCombe and Mrs Justice Carr today declared the government's disclosure scheme is incompatible with Article 8 of the European Convention on Human Rights. The High Court heard the …
"Among the claimants was a woman identified only as P, who was charged with shoplifting a 99p book in August 1999. After failing to attend her appearance before a Magistrates' Court 18 days later, she was summarily convicted of a second offence under the Bail Act 1976.
In November 1990, she was given a conditional discharge in respect of both offences."
So, she was discharged 9 years before the offenses? Cool! ;-)
Dave
Among the claimants was a woman identified only as P, who was charged with shoplifting a 99p book in August 1999. After failing to attend her appearance before a Magistrates' Court 18 days later, she was summarily convicted of a second offence under the Bail Act 1976.
In November 1990, she was given a conditional discharge in respect of both offences.
Wow, she got a conditional discharge before she committed the offence? Perhaps the company felt that if with 9 years planning she was unable to shoplift a 99p book without being apprehended she didn't meet the requirement of being able to carry out planned tasks successfully?
The home office considers itself to be in charge of law, the police and the courts.
So for a court to rule against it is like a child misbehaving.
So they are very disappointed - in the same way as a parent with a kid that won't eat brocolli
I attended a Home Office information session about DBS. The spokesperson made some very negative comments about how the scheme had been changed by the con/dem coalition Government to put some safeguards in for citizens such as rights of appeal. She apparently wanted them to be able to run roughshod over people's rights. It's worth mentioning that full DBS doesn't just include convictions for minor offences. It also includes 'soft data' or suspicions about people from reports made to the Police about someone - which can of course include a allegations made by people who don't like you or by former employers who have some sort of grievance against you. We were given two case studies. One was in relation to someone who the DPP had decided not to prosecute an alleged sex abuser who worked for a day care centre on what I thought were very spurious grounds. The victim of the abuse ( a young woman with learning g difficulties) was denied justice in court by a very craven DPP. However, we were not worry because a kangaroo court at the vetting and barring service thought the culprit was guilty and blocked him from working on care settings. We were supposed to rejoice that the Home Office had a way of protecting people that do don't involve messy and uncertain court proceedings.
The other case study was even worse. It was of a school teacher who was reported by a neighbour for having a large collection of porn magazines which the neighbour claimed had included child ponrongraphy. The result of the Police raid was that all of the magazines contained photos of adult women. However, the man admitted to Police that he sometimes had fantasies about school girls which he had no intention on acting on. This was reported to the DBS people and this teacher with a spotless record and no offences ever of any kind lost his job and got barred from working with children in any capacity.
Basically police checking is like a kind of minority report situation with all sorts of assumptions being made about people's future behaviour based on all sorts of assumptions. There is as far as I know no evidence that people who have committed minor offences are an enduring risk to the public. It is a huge industry with jobs for civil servants and which creates a form of apartheid against anyone who has ever done anything foolish and been found out.
he sometimes had fantasies about school girls which he had no intention on acting on
Err, Would we really want him allowed to teach? Because he currently has no intention of acting on his sick fantasies.
I wouldn't want him within half a mile of my kids.
With respect, this is not about the porn, or the neighbour's accusations; he admitted having the fantasies but said that he had no intention of carrying them out.
So not guilty of abusing kids. But definitely guilty of considering it.
And that makes him a risk to kids. Guilty until proved innocent, no. Guilt by admission - yes.
Protecting kids. That's the first priority. And the fact that he has these thoughts means there is a genuine risk factor. That he has chosen not to act on his fantasies doesn't make this less so.
The fact that he remained in the profession when faced by this makes him more so.
You wouldn't expect a recovering alcoholic to choose to work in a pub.
Or a recovering gambler to work on a racecourse.
Someone who has fantasies about abusing kids, but who places himself where there is access to kids is a risk to kids.
> Someone who has fantasies about abusing kids ...
Where does it say that ? That's just "thinks about kids, has to be a paedo" thinking.
I'd suggest that the number of normal healthy males who don't think about the visual delights of the female form is quite small - a very small majority if people were honest. Given that it's normal, genetically built in, for a human male to enjoy the sight of a naked human female (and if it weren't we'd not have got to where we are) - is it that much of a leap to suggest that a fair few would also enjoy the sight of a younger model ? How young ?
Well bear in mind that in Roman times a "girl" not married and probably with (or on way to having) kids by around 13 years old would be considered an old maid. The genetics havn't changed much, just "moral standards".
So "fantasies about kids" could be nothing more than wondering if the 16 year old ones are as beautiful as the 18+ ones in the mags. It could be more, it could be much more, but the information available to us doesn't given enough to say.
But on the evidence you don't have, you are prepared to say he cannot possibly be allowed anyway near kids.
I'd even go out on a limb and suggest that if anyone who had ever "fantasised about kids" in any way could not have any job that involved contact with kids ... then we'd have some severe manpower shortages in a lot of professions.
Your overly prudish attitude is part of the problem we have today. Thanks to idiots like you, a whole generation of children is growing up without the benefits of a rounded education we got. Many people are scared of volunteering for (eg) various out of school clubs either because of the cost of overly broad checks done through a crippled by design system, or through fear that some parent might say that they "looked at little Jonny or Jemima" in the wrong way and the local lynching mob will be round with pitchforks and a rope.
Aside from that, the system of engineered fear means that many (most) children these days don't get allowed to go off and experience being children. The problem isn't any worse than it ever was - when I was a youngster there were always the "men you stay away from", but our parents didn't react by preventing us growing up properly.
We went off, on our own, sometimes we'd get hurt (at least one school friend managed to kill himself with a motorbike) - but we learned from those experiences.
As an aside, but related. When I was at school it was the norm for most of us to walk to school - or use the bus. Going by car wasn't normally an option.
The roads near home are jammed solid at school start and finishing times - mostly with parents who probably justify driving their children to school as "all that traffic makes it dangerous to walk". Now, I wonder if any of them stop to think that they are part of the traffic.
" However, the man admitted to Police that he sometimes had fantasies about school girls "
Sorry. There is just no way that you can make that sound OK for someone who works with kids.
Or, anyone else for that matter. But especially not for someone in a position of care and trust.
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@Terry 6
Downvoted. You, sir, are a complete arse.
What normal healthy male has never fancied a nubile young lady. So you've NEVER had just the teensiest thought of what it would be like with a young girl, certainly younger than the "official" age of consent. I would consider that most young males when around 14 or 15, must have had thoughts like that. Not to mention that age doesn't really come into it when admiring the female form. If someone is beautiful, the age is really irrelevant - unless you act on it, which is a different story altogether.
So anyone who has ever had a sneaky thought of doing something illegal, but doesn't act on it should be prevented from being anywhere near the object of their fantasies, eh!
Maybe I shouldn't be allowed near shops because once, I had the fantasy of stealing something from one - but didn't act on it because I thought better of it.
Thought crime indeed, and it doesn't matter how much you protest, you are just plain wrong!!
He ain't done nothing, so nothing should happen to him.
So judge says "it seems to me, to be some machinery for testing the *proportionality* of the the interference, if the scheme is to be in accordance with the law"
Home office then say "This government remains committed to protecting children and other vulnerable people by providing employers with *proportionate* access to criminal record information in order to support safer recruitment decisions." yet implement a law which has no proporionality in it as it requires all and any crimes to be disclosed no matter what period of time has passed.
@Will Godfrey - Over here, records checks are either done when you work in a regulated industry or as means to disqualify one for the position. In the first case, there rules supposedly followed that limit what can be looked at and what constitutes grounds for disqualification. The second case is a method of disqualifying people without having to state the real reasons; they can hide behind an imbecilic, arbitrary policy.
Then there's the whole question of what is worthy of a "criminal" label. I do background checks on potential business clients and when I see any 'CR-' cases in that person's court records, I think "this should be interesting" and am more often than not disappointed to find that the "criminal" case relates to having an unlicensed dog or something else equally eye-rollingly banal. And then I wonder if HR drones research job applicants, see 'CR-' court cases, and then just trash their resumes because, hell, why waste time digging into one applicant's court history when there are plenty of others to choose from.
My understanding is that in Canada unproven allegations and not guilty verdicts do not go on the version criminal record disclosed to anyone but police officers, prosecutors, defending lawyers, and court officials.
So a potential employer would never see it.
That is how it should be.
@WatAWorld
For most CR's over here that is true. Try getting a government security clearance. An entire other world.
From my past, I've pulled my CR 3 times over the last 15 years, all three times it was 'no data found' type report - I however have a copy of what was done for my security clearance. It has data on it from *prior* to me being an adult, which was somewhat staggering, since our *legal* system states that that data be sealed off and unattainable.
https://en.wikipedia.org/wiki/Criminal_record#United_Kingdom
"These [ACPO criminal records] records are not publicly accessible and cannot be viewed without the subject's consent, although in some cases an employer might make such consent a condition of employment, especially if the employee is to work with children or other vulnerable people.
The child sex offenders disclosure scheme allows parents and guardians to ask the police if someone with access to a child has a record for child sexual offences.[94]
Information supplied depends on the level of disclosure required. Low-level disclosures only reveal unspent convictions (convictions which have not yet been expunged under the Rehabilitation of Offenders Act 1974), while enhanced disclosures normally include all convictions, cautions, reprimands and final warnings.
An enhanced criminal record certificate may contain relevant information that need not relate solely to criminal matters.[95]
Arrests that do not lead to an official finding of guilt, i.e. a conviction or the acceptance of a caution, are not considered part of a person's criminal record and are not typically disclosed as part of the process.
However, an enhanced disclosure may include such additional information, which is supplied at the Chief Police Officer's discretion.
Enhanced disclosures are typically used to screen applicants for positions such as police officer, social worker, teacher which involve contact with vulnerable groups and children."
It would be trivial to restore proportionality. Simply exclude from the CRB check any reference to offences that are "spent" under the Rehabilitation of Offenders' Act. That way serious offences (which are never "spent") will always be reported, but one-off less serious offences committed some years ago will not stand in the way of a person getting a job. It is, after all, exactly what the Rehabilitation Act sought to achieve, and what the CRB checks negated.
But then the Daily Mail will hype the case of any kid that is hurt by somebody that the police "thought was a bit dodgy but had no evidence" but they couldn't tell everyone because of those socialists in europe.
That could cause proportionate harm to the local MP's chances in the next election
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They would also have to exclude "soft intelligence", unproven allegations, and arrests that did not lead to a charge or caution. All fall under the general remit of the English principle of "Innocent unless proven guilty". I suspect those three categories boost the number of people with an unwarranted black mark in an ECRB check by a few more million.
The point of the disclosure system was that employers seeking to place certain individuals into positions involving access to kids and vulnerable adults would need to have sight of an individual's criminal record in order to make an informed employment decision - hence the exemption to the ROA.
The CRB was never meant to be a 'certificate of good conduct', and is not meant to be a mechanism of shortlisting. The difficulty is that employers and volunteer organisers are best described as 'risk averse', or ruddy mental.
Apart from the obvious ones, an adverse disclosure is not a bar to employment. If an employer cannot accept the risk posed by a 10 year old minor shoplifting matter, then they need to be repeatedly struck with a clue-bat until such time as they come to their senses, and preferably stopped from being in a position where they're responsible for safeguarding children or vulnerable adults.
There are very cogent reasons for a CRB system (Ian Huntley, obvs), but the application of the CRB needs to take place at a point at which the CRB'ee can obtain damages if an employer decides to unreasonably withdraw an offer on the basis of that disclosure.
CRB and ECRB were introduced post Soham and Huntley. However he came into contact with the girls via his girlfriend being their TA he did work at a college but that was irrelevant to him coming into contact with the girls. So an CRB system would not have prevented the killings just made him seek alternative work.
The only way a CRB system would have prevented Soham would have been if as part of the system when his girlfriend got the CRB she had to have partners checked too, then presumably anyone you share a house with, anyone likely to pop round and quite possibly the dog too.
That would obviously be absurd except for one thing it is already here and was required of teachers TA etc.
@Cynic,
From Wikipedia:
"Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Act as it applies in England and Wales was updated to provide new rehabilitation periods – with most convictions becoming spent in a shorter amount of time.[3] For adults, the rehabilitation period is one year for community orders, two years for custodial sentences of six months or less, four years for custodial sentences of over six months and up to and including 30 months, and seven years for custodial sentences of over 30 months and up to and including 48 months. Custodial sentences of over four years will never become spent and must continue to be disclosed when necessary. The rehabilitation period starts after the offender has completed his/her sentence, this includes time on license. "
That makes so much sense !
@Cynic, from what I read here https://en.wikipedia.org/wiki/Criminal_record#United_Kingdom
what you suggest is how it currently is -- except on enhanced disclosures.
a) Unless the position you are applying for requires an enhanced disclosure your conviction is not disclosed once it is spent.
b) Allegations and not guilty verdicts aren't disclosed either.
"Enhanced disclosures are typically used to screen applicants for positions such as police officer, social worker, teacher which involve contact with vulnerable groups and children."
Which leads me to believe the story has greater errors and omissions than just the messed-up dates.
Possibly she was applying for jobs like police officer, social worker, or teacher. But then I'd expect that the managers for such jobs, and their HR department managers, would have the experience on their own to ignore irrelevant old stuff.
" typically used " but there is no law preventing others using them.
A risk averse local authority decides it's safer (for them) to do the check on everyone, then insist that any company working with the council do one, then somebody in HR reads a story in the Daily Mail and decides that everyone should do one ...etc etc
Two minor convictions cause them to be disclosed on a DBS Report even though "spent". It's the two convictions which cause them all to be still disclosed. A single Minor conviction would not show after becoming spent.
The "Enhanced" one does.
As there aren't any rules about who can and cannot use the ECRB, everyone does.
The DBS don't charge very much and employers can (and do) make the prospective employee pay for it.
So practically everyone demands an ECRB, and makes the employee pay for it.
Due to Daily Wail and the fear of potential future liability, anyone who has anything on their ECRB (even irrelevant stuff) is automatically rejected by the majority of employers.
The ECRB is the problem. It probably shouldn't exist at all, and if May really wants to keep it then it needs to be strictly limited to particular posts.
The other fun bit is self-employed workers. You can't CRB or ECRB yourself...
Do you actually employ people or are you just guessing?
I am involved in recruitment, yes we do get the criminal background checks but only after we have made the offer (offer subject to passing obviously). Anything is taken on a case by case basis depending on what job the person will have and silly little mistakes from years ago get skipped over. In the rare cases that there's something which might lead us to decline we invite the candidate to explain what happened and make there case.
So case-case basis means the biased opinion of somebody who doesn't mind the odd drinking and driving but isn't going to hire somebody who once smoked a joint ?
What about next year when the Super-ECRB includes someones web search history ?
You interviewed them and offered them the job, the court has decided it's safe for them to walk the street - how come you are now deciding if it's safe for them to work there ?
When you have Applicant A with nothing and B with something, do you really call in B and ask for an explanation, or do you give the minimum-wage job to A?
You will only make that effort if you really, really want Applicant B.
Most jobs are not like that.
By your own description it's "subject to passing" an ECRB - and there lies the wub. You cannot pass those checks, except by the arbitrary decision of the employer.
(Though there are ways to fail, we aren't talking about those.)
And yes, I have seen this several times, especially in the care sector.
But don't believe me. Believe the judge in this case - this ruling says that such unfair discrimination can and has happened.
"The ECRB is the problem. It probably shouldn't exist at all, and if May really wants to keep it then it needs to be strictly limited to particular posts."
It's not really a question of whether May really wants to keep it, it's whether there's good reason to keep it. And for some jobs there may be a case. But it should only be available for those jobs.
And in general it should not be the job applicant who pays, it should be the prospective employer.
The rehabilitation of offenders act means that offences committed over ten years previously do not have to be disclosed and are not shown on a standard DBS disclosure. An advanced disclosure shows all convictions, and any other information on-file that is considered relevant. Except in DBSScotland, where even standard disclosures result in total CR disclosure. Hence the reason several large employers go to Scotland for checks. Several English councils, acting as "umbrella" organisations also use DBS Scotland.
There is an official route around all civil rights/justice obligations.
But you will always get the
"he killed an ant when he was 3, they should have known then he'd become a serial killer"
brigade from the Daily Mail on your back
How are people supposed to "move on" or "rehabilitate" if their 40 year old past turns up at job interviews?
what is called an "Adjournment to contemplate dismissal" or ACD. This is used on younger defendants charges and basically means that a defendant who keeps their "Nose Clean" for a year after the charge gets the conviction record sealed.
Once sealed, it cannot be used for ANY purpose or that defendant wins the legal lottery.
In vaguely related news, the BBC website has the story of a man cleared of rape in Yorkshire who now has to inform the police a minimum of 24 hours before having sex with a woman, providing them with her name, address & age - presumably so the police can tell her that he has previously "got away with it". This magistrate order can be extended indefinitely, and if he doesn't follow the rules he gets 5 years in jail. Apparently these orders can be imposed on any man who the police can persuade a JP is a risk to the distaff side of the population.
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I was just reading that. Regardless whether the Police think he's dodgy, slimy or whatever (even if he is), if he was cleared of the charges so should not have to be subject to this sort of human rights abuse.
Or is it guilty until proven innocent unless the Police think otherwise. I don't think this is where we should be or should be heading...what's next, enforced wearing of badges, ghettos?
Actually, it's so that the police can send someone round to shag her first. After the PNC was altered so that any/all checks on women for personal reasons (IE: going round her place after midnight to check her status) were logged (resulting in a large number of early retirements, and a few convictions).
Never attribute a reason for doing something to justice when a base reason is more likely to be accurate.
For minor convictions the record should automatically be concealed from records disclosed to employers (landlords, etc.) after 5 years -- provided there is are no further convictions.
Both burglary and embezzlement should exclude employment in certain occupations, and they are neither sexual nor violent offences. Probably burglaries and embezzlements should be concealed from records after 10 years -- provided there is are no further convictions.
Canada currently has a system somewhat like that, except that the concealment (formerly mis-named 'pardon') has to be paid for, your lawyer's fees plus a $400 application fee. (Lawyers want the $400 fee reduced to $100, probably so they increase their bills by $300.)
So far as I know Canada's system works fine.
But for juveniles, I don't agree that what happens before age 18 should disappear from your the records available to employers at age 18. That is how it is in Canada, do something at 17-1/2 and nobody can know about it. I think what you do up to age 16 should be kept secret. But what you do between age 16 and 18 should hang around at least until age 21, age 25 if it is sexual or violent.
For adults there should be a process to provide earlier record concealment, where a junior judge would look at a person's work history and lifestyle, and if _remarkable_ changes had occurred be able to issue an earlier concealment order, as little as half the time. (A wealthy person who can afford a great lawyers continuing to be wealthy is not be a remarkable change. Likewise being poor and eligible for free legal aid and continuing to be poor and eligible for free legal aid is not a remarkable change.)
The present system is a very expensive and stupid waste of time.
You have to have a separate check at each place which needs to check. It is a disaster for people who volunteer to help children, many of whom attend numerous venues, and must hold a separate certificate at each one (at huge cost to schools, hospitals or charities).
You have to have a new check each time you change your place of work. I know people who have been out of work for more than 3 months while the "check" took place, even though they had passed at their previous workplace, and had the certificate to prove it!
If you pass, then you are not rechecked for years.
And the paper based system discloses highly irrelevant stuff from your infancy.
Any meaningful system would involve those who need to be checked being issued with a chip-and-pin card. People who have to check being given a card reader (like the machine at a supermarket checkout), programmed with the relevant categories of offence. When you go to the location where a check is required, insert your card, the system performs a database query, and the machine shows a red or green light. No release of the details of the offence. If the card holder is refused inappropriately, then they can query the grounds of refusal with the home office, not the prospective employer. And get a zillion pounds compensation when they are inappropriately barred from selling vegetables because they threw an egg at an MP in their school years or similar.
You have to have a separate check at each place which needs to check. It is a disaster for people who volunteer to help children, many of whom attend numerous venues, and must hold a separate certificate at each one (at huge cost to schools, hospitals or charities).
You have to have a new check each time you change your place of work. I know people who have been out of work for more than 3 months while the "check" took place, even though they had passed at their previous workplace, and had the certificate to prove it!.....If you pass, then you are not rechecked for years.
Now the DBS can be registered online, at the applicants own expense of course. Thereafter it remains registered annually by paying the fee. And all new employers have access to it ( I don't know how that bit works, but I assume they pay a fee too). I do wonder what updating, if any, is done.
OTOH To get an initial DBS is apparently taking many months in some police authorities - and members of an applicant's household also have to have the EDBS now. According to the reports on BBC Radio 4 this week there are any number of people missing job and training offers because of this.
Q.7: Is a DBS/CRB certificate transferable (i.e. to another employer)? What is the DBS Update Service?
If the applicant is a member of the "DBS Update Service" they need to show you their original hard-copy DBS certificate. You need to check that it is the:
correct level (Standard or Enhanced),
correct workforce (adult or child workforce) and ....
that the barred list checks were carried out (if you need them).
The applicant must also need to provide you with their unique "DBS Update Subscription Number", so that you can check if their have been any changes to their DBS certificate.
To do this please go to the DBS website and follow the on-screen instructions.
If the applicant is not a member of the DBS Update Service, there are a number of factors you should take into consideration before accepting a DBS certificate issued by a different employer.
Please refer to the DBS guidelines on accepting a previously issued certificate which can be found on their website.
The DBS Update Service is managed solely by the DBS. If you have any problems or queries regarding the DBS Update Service, please contact the DBS by telephone: 03000 200 190 or email.
The Canadian system is subverted by private HR services that keep permanent copies of those records.
Any public accusation is enough to disenfranchise a person, but your landlord might not know about, or be able to afford, access to these databases.
Americans have a similar problem with automated matching of arrest booking photographs. Police contact records are forever.
There is an opportunity for an enterprising individual to only employ 'the unemployable' (those disadvantaged by previous youthful hijinks).
These people will be more likely to be industrious and loyal than any other employee who could easily move to another employer.
(a bit like Freelance Programmers for crims)
Like a lot of us I was a complete shit* when I was a teenager and it makes me cringe to think of the stupid things I would get up to. Thank Whoever I did not get caught for youthful stupidity.
Any hypocrite want to claim he was not taking risks with life, limb and property when at a tender age?
*Complete because of cultivating a respectable persona to display to the rest of the World.
There have been reports that CRB and ECRB are causing a big drop in volunteers - particularly of men. Not necessarily people who have anything to regret - but just on principle.
I doubt if anyone knows what the various databases hold on them as hearsay or wrongly attributed. Given the inherent suspicious nature of those in law enforcement - even the most innocent things can be construed as worth recording with bias.
It can be said that those who want certain positions are the most likely to abuse them. Even if you limit your participation to funding a social good - a police investigation will assume that as proof of guilt in a conspiracy for whatever they have alleged has happened somewhere. Their reasoning appears to be that there is no such thing as altruism.
The only people with a criminal history are people who have live in the country for a long time.
Immigrants don't have a history so it comes up clean no matter what they did before they arrived.
have you noticed how so many Africans are in govt jobs and are as slimy as it comes.
often the only quail's they have is in Photoshop.
This should also apply to credit checks as some employers now look at credit checks and with 6 years of bad credit flagged against you can be bad. This is an invasion of privacy and an unjustifiable way for the courts etc to make money.
Ban credit checks. People are not criminals because they failed to make a payment!!
So, if the worthy company actually decides that it will engage me for the post I just applied for, I shall have to refuse to take up the job, on the grounds that my work colleagues and superiors will know all about my own criminal history, but I will know nothing of theirs.
As an exoffender, with plenty of practice being stupid, I am unable to work with others who are currently offending, or at risk of offending. As a consequence, these vulnerable people have instead to rely on some do theoretical gooder who has a degree in social politics and very little experience of why people may be drawn into offending, and in particular, how bloody difficult it is for a child who grows up in some of UK's less well provisioned localities, to avoid becoming a criminal at 14-16 years of age.
Today, they are being categoried as NEETS (and just like the JEWS in Nazi germany) are thereby condemned through the Home Office's "worthiness triage process" being dished out by "proper pro's" like dentists and doctors, and who are then classed as a Social Security and Housing Benefit scroungers - for life. Along with all their kids.
Meanwhile, an ISIS refugee will be suitabley placed in UK and will receieve much support from other "proper pro's", in order that they can make a good recovery from their dreadful ordeal.
Meanwhile the victims of UK's upper class, "proper pro" scumbags like Lord Janner and his mates, will get fuck all other than some of the UK's finest rough justice.
What a fuckin shit and shot to fuck cunt tree this is.
I am left feeling that, as experienced and qualified as I am, I am unable to contribute.
ALF
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