The question of ‘human rights’ has necessarily been brought into the debate on disclosure of ‘non conviction information’. In particular, the rights expounded in the European Convention on Human Rights that were brought into UK law by the 1998 Human Rights Act. Article 6 (the right to a fair and open trial) and Article 8 (the right to privacy) of the Convention and the concept of proportionality have been slowly integrated into decision-making on the disclosure of ‘non conviction information’. This integration is an on-going matter subject to continuing debate. What had seemed a fairly simple decision back in the 1980s on what ‘non conviction information’ to release is now realised to be a far more complex matter.
KeywordsEuropean Convention on Human Rights Human rights Privacy Fair and open trial Human Rights Act 1998
A recurring theme throughout this book has been that of human rights and matters of proportionality. In particular, human rights as provided for in the European Convention on Human Rights which the UK is a signatory to; there are, of course, other Conventions and Declarations made on human rights. In this chapter, we return to the theme and take a closer look at how human rights impact upon the police disclosure of ‘non-conviction information’.
The European Convention on Human Rights was drawn up by the Council of Europe in the years immediately following World War II; the aim was to ensure no return to the atrocities that had been witnessed during that war. As members of the Council of Europe, the British were said to be very influential in drafting the original Convention; the Council of Europe is independent of the European Union although all Member States of the EU are required to become signatories and to ratify the Convention. The Convention has 18 Articles and a number of Protocols; any alleged breaches of the rights are heard in the European Court of Human Rights in Strasbourg (CoE 1950).
The UK government played a major part in drafting the Convention and was amongst the first group of countries to sign it and ratify it in March 1951. Ironically, individual UK citizens alleging breaches of the Convention were not allowed to apply to the Court for remedy until after 1966. The UK Human Rights Act 1998 incorporated the Convention into British law and avoided the costly applications implicit in taking a case to the Strasbourg Court; the Convention is reproduced in Schedule 1 of the Human Rights Act. British lawyers were required to understand the new interpretive techniques that were going to be needed to challenge breaches of the Convention; up until now, the UK had always adopted its common law approaches to law and its culture of civil liberties rather than human rights.
a search for the fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals human rights. (Soering v United Kingdom (1989) 11 EHRR 439: para. 89)
In this chapter, we focus in particular on Articles 6 and 8 of the Convention and the idea of ‘proportionality‘ as it applies to the disclosure of ‘non-conviction information’ to employers by the police.
European Convention on Human Rights—Article 6
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.
- 3.Everyone charged with a criminal offence has the following minimum rights:
to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
to have adequate time and the facilities for the preparation of his defence;
to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
This rights and moral dimension of the criminal justice process is arguably not accommodated within the ‘non-conviction information’ disclosure process even when the applicant is given an opportunity to make representation regarding his behaviour. This is because, if an applicant has to concede that they were involved in unlawful behaviour, they are not assisted by the powers conferred by Article 6(3) of the European Convention on Human Rights to require witnesses to provide evidence, and to explain the circumstances in which they acted; such information may of course not be ascertainable. That leaves the almost impossible task of convincing an employer that the applicant’s state of mind at the time justified their behaviour. It is not an adequate excuse that the information disclosed has been determined as ‘relevant information’ to considerations of risk rather than a determination of guilt or innocence when there are no reliable means of establishing a culpable state of the applicant’s mind to render them blameworthy for their behaviour.
The charged person also has the right:
to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. (ECHR Article 6(3)(d))
At no stage of the criminal investigation will the suspect be allowed to interrogate witnesses or appoint someone else to. The suspect cannot compel the attendance or co-operation of witnesses or instruct the police in the line of questioning they will pursue. At best, they can only ‘suggest’ a line of questioning and that may go in their favour at trial if the police did not follow their ‘suggestion’ which will be on tape. These requirements can only be met within the process of a trial hearing, in the absence of which, the evidence against the accused cannot later be shown to meet a standard of proof which justifies the implication of guilt through an Enhanced disclosure.
If the allegation had reached the trial stage, the ECRC regime impinges on the fairness of the trial process itself because the accused not only has to be concerned with being acquitted but the manner of the acquittal. The inclusion of an acquittal in an ECRC is particularly damaging because it indicates to the employer that the merits of the allegation justified the hearing of a trial. If the accused is concerned about the appearance of an acquittal obtained ‘on a technicality’ or of being ‘bound over’ as an alternative to undergoing the full process of prosecution and trial, he or she may take a higher risk approach in their defence such as refusing to be ‘bound over’ or submitting to cross-examination against the recommendation of Counsel leading to an increased possibility of wrongful conviction.
The European Convention on Human Rights Article 6(3) lays out the minimum procedural rights of the citizen charged with a criminal offence which aims to prevent an unfair trial. These rights do little, however, to protect him or her from later disclosure of an allegation for which they were charged, but where there was no conviction and do nothing to protect them from the disclosure of an allegation that did not reach the charge stage of the criminal justice process. Such disclosure of this information is, arguably, likely to have largely the same outcome as the disclosure of a conviction, for the purposes of his or her employment application.
The only safeguards are the Statutory Disclosure Guidance principles and the QAF (see Chapter 5) with the possible opportunity to make representation to the police regarding the information disclosed. It is little consolation that he or she has the right to appeal to the Independent Monitor for a review of the Chief Officer’s compliance with the Statutory Disclosure Guidance and the QAF when the decision to disclose is within the chief officer’s discretion; the final resort to an application for judicial review of the decision is both lengthy and costly.
An individual questioned by the police has no obligation to co-operate with them at the pre-arrest stage (Rice v Connolly  2 All ER 649). He or she does, however, face the prospect of the record of the police investigation and his or her refusal to co-operate subsequently disclosed within an Enhanced disclosure. The effect of this can be that an individual against whom there were not even grounds for arrest faces potentially punitive consequences by an employer who may view such refusal to answer police questioning was an effort to conceal some wrongdoing.
At the arrest stage, without the protection of Article 6(3)(b), the suspect may not be given time to prepare a defence against the allegation that will be afforded if matters proceed to trial. The police interview, which is approached as an evidence-gathering exercise, is a poor substitute for a fair hearing but maybe the only one that has been offered to the suspect when the allegation is being considered for disclosure. The suspect’s right to silence has been watered down due to the possibility of an ‘adverse inference’ being drawn at trial from his or her silence (Criminal Justice and Public Order Act 1994 ss34–37).
The possibility of an ‘adverse inference’ may also be made for the purpose of employment vetting through an ECRC. The perception of some employers is likely to be that if the applicant has no wrong-doing to hide, then he or she should have been willing to answer questions in the interview. This creates the possibility that the innocent person mindful of the ECRC contents may answer questions that produce circumstantial evidence sufficient to support prosecution, and possible wrongful conviction. The suspect still has the right to legal advice at the interview (Police and Criminal Evidence Act 1984 s58) but the advice received concerns the matter of defending the allegation which takes precedence over any ‘non-conviction information’ subsequently being disclosed by employment vetting.
The ECRC regime may even continue to interfere with justice following the end of an investigation, prosecution or trial, and there is an inherent conflict between the opportunity of making representation and the right against self-incrimination. Making representation which could be considered under the QAF and the Statutory Disclosure Guidance (Principle 4), is discretionary and can be made in spite of an advance decision that the information will be disclosed anyway simply as a demonstration of procedural fairness especially for the avoidance of litigation (see R (on the application of C) v Chief Constable of Greater Manchester Police (2011) EWCA Civ 175: para. 13).
This is because the role of police investigations in an adversarial system is not to find evidence that suspects of crime are innocent, but, rather, to treat situations that they are called to as potential crime scenes and seek evidence that incriminates suspects for alleged criminal offences to pass to the Crown Prosecution Service (CPS) to supply a criminal charge. (Naughton 2011)
European Convention on Human Rights—Article 8
Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The disclosure of ‘non-conviction information’ for the purposes of employment screening has been claimed to breach Article 8. Below, we consider the response of the UK courts.
The case of R(X), that we first met in Chapter 3, was the first real challenge to the police disclosure of non-conviction information. X argued that the disclosure of allegations by the West Midlands Police was unlawful under the European Convention on Human Rights Article 8 and procedurally unfair. In the High Court, the judge found in X’s favour and quashed the Chief Constable’s disclosure decision. The judge held that the Chief Constable’s duty to act fairly included an obligation to permit X to make representations in relation to the proposed disclosure. The right to make representations was accepted as a basic aspect of procedural fairness in public law (R(X) v Chief Constable of the West Midlands Police  EWHC 61 (Admin)).
The Chief Constable, in turn, appealed the decision and the judgement was reversed. The Court of Appeal did not accept any of X’s arguments. Lord Woolf CJ declared that the information disclosed was such that ‘a reasonable employer in this field would want to know’ and that X was, in effect, ‘seeking to prevent that information being available’ (R(X) v Chief Constable of the West Midlands Police  1 WLR: para. 65).
Lord Woolf CJ declared baldly that ‘there is no presumption against disclosure’ in the Police Act; indeed, the court felt that the Police Act created a position which would, if anything, be more in favour of disclosure than against. The only question left to answer was as to when a soft disclosure should be made. When weighing a balance between the right of the applicant to privacy and this ‘pressing social need’, the court strongly believed that the latter outweighed the former by an immeasurable degree. The scope of the balancing exercise was set out by Mr Justice Wall: ‘It is not enough for the decision maker simply to say that he has carried out a balancing exercise. He has to identify the factors he has weighed and explain why he has given weight to some and not others.’
The Appeal Court has further ruled that the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 were both incompatible with Article 8 of the ECHR (the right of privacy) in that it provided for the disclosure to employers of all spent convictions and cautions on a blanket basis, as well as allowing them to ask about and take into account such convictions and cautions (R (T & others) v Chief Constable of Greater Manchester Police, Home Office and Ministry of Justice  EWCA Civ 25). The Supreme Court later agreed that Article 8 was incompatible with the law and made the same ruling as the Court of Appeal (R (on the application of T and Another) v Secretary of State for the Home Department and Another  UKSC 35).
In February 2018, the High Court went a step further in ruling unlawful the disclosure of multiple convictions in (R (on an application of (1) QSA (2) Fiona Broadfoot (3) ARB) v (1) Secretary of State for the Home Department and (2) Secretary of State for Justice  EWHC 407 (Admin)). Three women who had in the past worked as prostitutes successfully challenged the police’s decision to disclose their multiple old convictions relating to soliciting on the basis that disclosure was a disproportionate infringement of their Article 8 right. The court acknowledged that being victims of the most unfortunate circumstances had led to their offending behaviour. Could this pave the way to a renewed sympathetic approach taken by the courts when considering the proportionality of disclosure by taking into account the unfortunate underlying circumstances of historical offending behaviour such as drug dependency, abusive childhood or a psychiatric condition? Again in the instance of the disclosure of ‘non-conviction information’, the applicant has the disadvantage of not being able to demonstrate his or her rehabilitation from offending behaviour.
This means that the decision is no more than necessary to achieve the legitimate aim and that it strikes a fair balance between the rights of the applicant and the rights of those the disclosure is intended to protect. (Home Office 2015: para. 22)
The individual about whom ‘non-conviction information’ is held faces the prospect of extensive encroachment into their right to respect for private and family life, their home and correspondence under Article 8 of the European Convention on Human Rights and in certain circumstances, more so than persons with convictions, depending on the nature of the offence that the intelligence relates to. This applies not just within the context of employment prospects but in entitlement to welfare benefits if he or she is unemployed and seeking work.
the problems that this creates as regards the possibility of earning a living can have serious repercussions on the enjoyment of her private life. (Sidabras v Lithuania (2004) 42 EHRR 104: para. 48)
and that the individual ‘is entitled to have her good name and reputation protected’ (Turek v Slovakia (2006) 44 EHRR 861: para. 109). Much of the harm caused to the individual is of an intangible or psychological nature, including losses of opportunity and social exclusion, unquantifiable but substantially impoverishing the unconvicted person’s quality of life with the ever-present threat of non-consensual disclosure of the information or alerting the suspicions of others to their having ‘something to hide’ in their efforts to avert disclosure.
This line of authority from Strasbourg shows that information about an applicant’s convictions which is collected and stored in central records can fall within the scope of private life within the meaning of article 8(1), with the result that it will interfere with the applicant’s private life when it is released. It is, in one sense, public information because the convictions took place in public. But the systematic storing of this information in central records means that it is available for disclosure under Part V of the 1997 Act long after the event when everyone other than the person concerned is likely to have forgotten about it. As it recedes into the past, it becomes a part of the person’s private life which must be respected. (R(L) v Chief Constable of Metropolis  UKSC 3: para. 29)
The information disclosed in these cases related to criminal allegations against an applicant which had been admitted or proven at trial it would logically follow that the argument is far weaker, for the lawfulness of disclosing non-conviction information. Sadly, the lack of substantiation by trial of a criminal allegation or the lack of even a crime being alleged appears to still be regarded as less important than the nature of the allegation as is evident from the decision in the case of, R (on the application of SD) v Chief Constable of North Yorkshire where a contrasting and seemingly arbitrary judgement of relevance in considerations of risk was applied. Lord Justice Beatson stated that ‘some disclosure’ of allegations was justified when a disclosure had been made by North Yorkshire Police of ‘alleged unprofessional behaviour’ which they believed to be relevant to the ‘employer’s risk and suitability assessment’ in his application to work with children. This practice clearly exemplifies the conflict with the Statutory Disclosure Guidance Principle 7 that the police should not base their disclosure on their opinion as to the applicant’s suitability when they are selecting information to disclose (R (on the application of SD) v Chief Constable of North Yorkshire  EWCA Civ 1838: para. 57).
The details of SD are worth considering. Whilst working as a lecturer supervising a college trip abroad almost four years prior to the date of the disclosure, SD allegedly made inappropriate sexual comments in the presence of students aged 17–24 and other colleagues. The alleged comments were considered more likely than not to have been made due to the high degree of corroboration between witnesses, including independent witnesses. The students indicated that they found the alleged behaviour ‘inappropriate, strange and childish’ (ibid.: para. 56). The police accepted that the alleged behaviour was not criminal and that at most it simply amounted to poor behaviour that should not be disclosed according to Principle 2 of the Statutory Disclosure Guidance .
The reality of the degree of the concern regarding SD’s alleged conduct in the view of the witnesses, the college and the police is reflected by the facts that no information was relayed to the college about the trip prompted them to investigate SD’s alleged behaviour until over a year later. The college then got to hear about it when investigating a grievance brought by SD against a colleague who told the investigator about SD’s alleged conduct. At this point, the college agreed to provide SD with a positive reference in a compromise agreement under which he left their employment avoiding the need for a formal disciplinary procedure. Only at this point did the college report the allegations to the local police whose investigation did not even require contacting SD before concluding that no crime had taken place.
This did not prevent the police from later justifying the decision to disclose on the misleading basis that ‘his employers deemed it serious enough to report to the police for assistance’ (R (on the application of SD) v Chief Constable of North Yorkshire  EWCA Civ 1838: para. 18). The disclosure analyst, a quality assurance officer, a DBS manager and an officer to whom the Chief Constable had delegated the disclosure decision, all considered that the need to make disclosure outweighed SD’s right to respect for private life with reference to the ‘potential risk’ posed by him. It was considered to be a fair opportunity for SD to defend against the allegations that the representation he made denying the alleged comments and claiming that the statements given in the investigation amounted to hearsay and collusion, was included in the disclosure.
Those involved in deliberating the decision to disclose stated that they felt that SD’s employment with children had the capacity to develop into something that could possibly have been unpleasant or unwelcome, and the court agreed that this justified disclosure of the allegations. Only because the disclosure decision failed to take account of the finding of the Independent Safeguarding Authority that SD should not be barred from working with children was the disclosure held to be a disproportionate infringement of his right to respect for private life under Article 8 (ibid.: para. 58).
Proportionality means that the interference must be no more than is absolutely necessary to achieve one of the aims in the European Convention. The impact of the restriction on the individual must not be excessive in relation to the legitimate interests pursued. In other words, the state must not use a sledgehammer to crack a nut. The more severe the interference with an individual’s rights the more is required to justify it. In their research, the Law Commission identified ‘a failure to incorporate … proportionality … into disclosure decisions’ (House of Commons 2017: para. 5.101).
Before disclosing, the Chief Police Officer confirms that he or she has considered the human rights of the relevant parties. This is essentially considering the proportionality test again, as the applicant’s right to respect for private life under Article 8 of the ECHR will be measured against the potential harm caused to children and vulnerable people as a result of non-disclosure.
As an aside, the process is also subjected to the Wednesbury Principles, whereby the decision-maker must consider all of, but only the relevant, considerations and not make a decision regarding disclosure that no reasonable person properly directing himself could make. This places an onus on the police to consider the widest range of material attaching the appropriate weight to relevant considerations (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation  1 KB 223).
An additional source of guidance for the potential applicant is the second edition of the Statutory Disclosure Guidance 2015 which is intended for chief officers of police but is available to the public and may inform the applicants’ decision to apply. He or she may be given some assurance in the knowledge that the police are directed not to presume that any category of allegation should be disclosed (Principle 1) and possibly less assurance from the principle that the information disclosed should be ‘sufficiently serious’, ‘sufficiently current’ and ‘sufficiently credible’, avoiding the disclosure of merely ‘poor behaviour’ (Principle 2). The Applicant’s Guidance to the QAF explains that ‘any’ information can be disclosed even if it is not a criminal allegation and the evidential threshold for disclosure is admittedly low. There is little encouraging in the principle that the Chief Officer should consider offering the applicant the opportunity to make representation (Principle 4) given the possibility of the opportunity not being offered, it being offered in spite of a decision having already been made to disclose, the inadequacy of the opportunity as a fair hearing and the risk of self-incrimination from doing so.
In spite of the purported justification for disclosing ‘non conviction information’ in the guidance, rather than relying on information disclosed through the ECRD regime, the particular vulnerability of these client groups could arguably be addressed by the higher level of vigilance promoted through safeguarding training, with referrals to local authority children’s and adults safeguarding boards available for their investigation.
The need for the decision to disclose to be proportionate in regards to the applicant’s right to respect for private and family life under Article 8 is the basis of Principle 3 of the Statutory Disclosure Guidance , the principle having been imposed by the Supreme Court in R (L) as the proper way of determining what information might be relevant and ought to be disclosed with equal weight being given to the competing considerations of the social need to protect vulnerable people and to the applicant’s Article 8 right.
Lord Hope stated that careful consideration should be given whenever the level of disruption to the private life of the applicant is considered to be equal to or greater than the degree of risk of non-disclosure to the vulnerable group, with the rationale for a disclosure made very clear (R(L) v Chief Constable of Metropolis  UKSC 3: para. 45). The ECRD regime does not require this proportionality test in the process of disclosing convictions and it is not applied in the decision to bar an individual from regulated activity. How then can it be rationally justified for use in the disclosure of non-conviction information? If the Police intelligence reliably indicates that the applicant poses a risk of harm to the vulnerable people he will have access to in his job how can the impact on the applicant be considered as a justification in not disclosing with the consequence that the level of protection afforded to the vulnerable fluctuates according to the sensitivity of the applicant and how can such an approach be considered conducive to promoting uniformity in levels of disclosure?
So, if the negative impact on the applicant’s private life (including employment prospects) is far greater than the potential risk of harm to the vulnerable, a decision not to disclose may be the appropriate one. (DBS/SCU 2014: 12)
Apart from being so vague as to amount to no practical guidance for the applicant, this contains no direction that the detriment of the decision should be borne by the party suspected of wrongdoing and this is unsurprising because the bar for disclosure, while not explicitly stated, is clearly not set at the standard of ‘reasonable suspicion’.
The concept of the proportionality test as a balancing exercise with the scales beginning at an even level is problematic as an analytical tool in weighing the respective potential harm between the applicant and the vulnerable people. On the one hand, if the disclosure is made at the very least a significant infringement on the applicant’s privacy can be presumed to occur with the possibility of a multitude of further adverse consequences to his career and reputation. On the other hand, a decision not to disclose holds an obviously less likelihood of harm being caused to a vulnerable person when the applicant is not even known to have committed an offence relevant to the prescribed purpose of the regulated activity, let alone pose a risk of committing some further wrong against the vulnerable. Why then should the scales not be tipped in favour of non-disclosure in the balancing exercise in accordance with his common law right to a presumption of innocence?
As the balance of competing considerations is ill-conceived as assessing a balance of potential harm, the counter-argument is that the degree of harm that could be caused to the vulnerable justifies there being no presumption against disclosure and that the law should seek to protect the innocent rather than those who would cause harm to them. We are now back to the need for guilt to be established through a fair trial rather than allowing a system which will be so detrimental to innocent applicants, and we have clearly moved away from the over-simplistic analogy of using weighing scales to determine proportionality as a fair method of making the decision to disclose.
It is impossible to measure the extent of the emotional impact of disclosure to the applicant in any objective sense which arguably renders the test academic. While the approach to proportionality endorsed in R(L) may benefit some applicants whose non-conviction intelligence amounts to a less serious indication of risk, how reassured the applicant can be is another matter given that, in this case, the decision to disclose the placing of the applicant’s delinquent teenage son on the local authority’s child protection register under the category of ‘neglect’ was held to be proportionate despite that the disclosure was for employment in a role in which the applicant already worked supervising secondary school children during break times with four other colleagues, and as a consequence of disclosure she was dismissed without an opportunity to make representation deemed necessary.
It is clear that the dicta from case law referred to in the Applicant’s Guidance is contradictory and that it does not constitute any form of coherent guidance on which the potential applicant can predict the outcome of an application. The QAF may assist in promoting a more consistent level of disclosure across police forces but there remains much scope in the interpretation of intelligence and no clearly defined evidential threshold on which the potential applicant can attempt to base his decision whether to apply. Whatever quality assurance system is put in place, it is impossible to strike a rational balance between making precautionary disclosure of unproven allegations in order to protect the vulnerable and fairness to the applicant by only disclosing reliable information relevant to considerations of risk.
The aim is to subject the information to tests of relevance, substantiation and proportionality to ensure that a consistent level of reliable intelligence is disclosed and then setting out the rationale for the decision regarding disclosure (DBS 2018).
The question of ‘human rights’ has necessarily been brought into the debate on disclosure of ‘non conviction information’. In particular, the rights expounded in the European Convention on Human Rights that were brought into UK law by the 1998 Human Rights Act. Article 6 (the right to a fair and open trial) and Article 8 (the right to privacy) of the Convention and the concept of proportionality, have been slowly integrated into decision making on the disclosure of ‘non conviction information’. This integration is an on-going matter subject to continuing debate.
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