The regime for the disclosure of criminal records in England and Wales is currently known as the Disclosure and Barring Service (DBS) check; formerly the Criminal Records Bureau (CRB) check. It is submitted that this regime, has not, and does not go far enough to protect the rights of individuals: it is not fit for purpose.
First, in order to understand the challenges made to the adequacy of the regime, it is necessary to consider its foundations and history. Thomas states that ‘the idea of using police held information and conviction records for vetting people goes back a long way.’ This is apparent from Emsley who asserts that:
In 1863 the Chief Constable of Lincolnshire protested that his men were constantly receiving letters from private enquiry offices seeking information as to the character, respectability and money value of persons residing in the towns and villages.
Since then, the regime was developed incrementally. However, with no safeguards on data protection or any wholesale concern as to such issues throughout at least the first half of the twentieth century, the regime was allowed to develop without any legal basis; it went largely unchecked for over a century. In 1991 the Home Office published a consultation, titled ‘Disclosure of Criminal Records for Employment Vetting Purposes.’ This thematically reviewed the history of the regime and proposed various reforms to improve the process and provide better protection for individuals.
However, alongside these developments, there was other legislation rumbling into fruition. First, the Rehabilitation of Offenders Act 1974 which laid down timescales for the ‘rehabilitation period’ of various criminal offences; commonly referred to as the period in which convictions are ‘unspent’. Additionally, the Disclosure and Barring Service, an executive agency, was made responsible for the issue of certificates relating to a person’s criminal record pursuant to the Police Act 1997.
However, despite this, no real change was implemented until the CRB regime came to fruition in 2000. When announcing the new regime, Corbitt recites that, ‘the then Home Secretary, Jack Straw said that, “dangerous people need to be stopped from working with children and young people. The creation of the CRB is an important step towards achieving that”’. To this end, the purpose of the regime cannot be criticised. It must be acknowledged, as propounded by Hancox and Widdrington, that ‘it is vital that schools and colleges create a culture of safe recruitment and, as part of that, adopt recruitment procedures that help deter, reject or identify people who might abuse children’. However, despite the laudable reasoning for such a regime, the implementation of it was rushed in response to civil unrest. Thomas recalls that:
the public disquiet about “dangerous” people in the community, including paedophiles, and the seemingly constant array of teachers and children’s home workers in court for abusing children in their charge kept politicians alert to the fact that this was one political hot potato that could not be ignored.
It is submitted that this ‘paedophile panic’ led to the fundamental flaw in the regime. In an attempt to quell public concern, particularly after the notorious murders such as those of committed by school caretaker Ian Huntley in 2002, the government adopted a system which was overly protective, and thus not fit for purpose.
The CRB regime under the Police Act 1997 was comprised of two types of check: a Standard check, which disclosed only unspent convictions; and, an Enhanced check, required for working with vulnerable persons including children and the elderly. Pursuant to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, the Enhanced check would provide disclosure of all convictions, regardless of whether or not they were spent. Scorer voiced the concerns of commentators who complained of an ‘over vetted society in which innocent activities such as dressing up as an elf at a children’s Christmas party are becoming impossible due to a toxic obsession about paedophilia out of all proportion to reality… have we gone too far already?’. It is submitted that the regime did go too far, as can be evidenced by recent case law.
First, the Supreme Court decision in R (On the application of T and JB) v Secretary of State for the Home Department and another. In T, the police issued warnings in 2002 to an 11-year-old boy in respect of the theft of two bicycles. The warnings were disclosed in 2008 when T applied for a part-time job with a football club possibly involving contact with children; and in 2010 when he applied for a place on a sports studies course which again might have involved contact with children. In JB, the police issued a caution to a 41-year-old woman in 2001 in respect of the theft from a shop of a packet of false fingernails. In 2009 she completed a training course for employment in the care sector. She was required to obtain an Enhanced CRB check, which disclosed the caution. The training organisation told JB that it felt unable to put her forward for employment in the care sector. In both cases, the court held that, the disclosure of the cautions significantly jeopardised entry into their chosen fields of endeavour, engaging Article 8 of the European Convention of Human Rights. Lord Reed propounded that ‘legislation which requires the indiscriminate disclosure by the state of personal data which it has collected and stored does not contain adequate safeguards against arbitrary interferences with art 8 rights’. As such, the court considered that the Police Act 1997 was incompatible with Article 8 because it failed to meet the requirement of legality, that is, that the interference with the Convention right was not in accordance with law. Consequently, the court issued a declaration of incompatibility pursuant to the Human Rights Act 1998. Therefore, it is clear that the former CRB regime was clearly not fit for purpose. It failed to adequately protect the rights of individuals.
However, the Government had, in fact, already acknowledged the arbitrary nature of the regime and had been in the process of reforming it before the Supreme Court gave judgment. Thus, on 29 May 2013 the DBS regime replaced the CRB regime and amended the Police Act 1997 to introduce a filtering process whereby Enhanced DBS checks only disclose relevant matters. To that end, individuals with only one conviction, for an offence other than a serious specified offence listed in section 113A(6D) Police Act 1997, and an offence which has not resulted in a custodial sentence being imposed, will have the conviction filtered after 11 years; meaning that it will not be disclosed. However, any person with more than one conviction, regardless of how minor, will not benefit from the new regime; the convictions will still be subject to arbitrary disclosure as under the former regime. Therefore, it is submitted that the new regime, like the old, is not fit for purpose. It is still incompatible with Article 8.
The exact issue came before the High Court, in R (on the applications of P and another) v Secretary of State for Justice and another. P was 47 years old. In July and August 1999 P committed two offences of theft by shoplifting. The objects stolen were a sandwich and a book priced at 99p. For the first offence she was cautioned. P was prosecuted for the second offence and bailed to appear before the magistrates’. Owing to P’s poor health and homelessness at the time, P failed to appear at court and was convicted both of the second theft offence and an offence in respect of breaching bail. P was discharged conditionally in respect of each offence. Thus, however, P acquired two convictions. McCombe LJ, giving the judgment of the court, held that the new DBS filtering regime was ‘arbitrary’ and ‘unlawful’, referring to and largely following the reasoning given by Lord Reed in T. In response to the judgment, James Welch, legal director for Liberty, said that ‘the government must urgently fix this broken system, which rightly allows people with a single minor offence to move on with their lives, while those with two – no matter the nature or circumstances of their crimes – cannot.’ As such, it follows that the DBS regime is not fit for purpose; it is incompatible with Article 8 and fails to adequately protect the rights of individuals. Whilst the Government are likely to appeal the latest decision, it is submitted that any such appeal would be doomed from the start. The compelling reasoning given shows the current DBS regime to be barely better than the last. Instead, the Government should devote their time and resources to meaningful reforms which will protect both vulnerable persons and the rights of individuals seeking employment with them.
In conclusion, it can be seen that although the criminal record disclosure regime is necessary in order to provide adequate protection to vulnerable members of society, it has not reached the required threshold to provide it with the title of providing adequate protection to the rights of individuals. it is submitted that the charge set out has been evidenced beyond reasonable doubt and, as a result, it can be said that the regime is not fit for purpose. This has been shown by examining the history and highlighting the rushed implementation of the regime in response to a perceived threat, the fundamental flaw in its development; and, the case law which has provided significant weight to the charge advanced.
29 August 2016
 Terry Thomas, ‘The one-stop-shop’ (2001) 151 NLJ 298.
 Clive Emsley, The English Police: a political and social history (Harvester Wheatsheaf 1991) 107.
 Home Office, Disclosure of Criminal Records for Employment Vetting Purposes—A Consultation Paper (CM 2319, 1993 (a)).
 Rehabilitation of Offenders Act 1974.
 Police Act 1997.
 Terry Corbitt, ‘Criminal Records Bureau’ (2003) 167 JPN 572.
 Nicholas Hancox, Tony Widdrington, The Law of Education (9th edn, Lexis Law Publishing 2015) para 25408.
 Terry Thomas, ‘The one-stop-shop’ (2001) 151 NLJ 298.
 Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.
 Richard Scorer, ‘A vetting epidemic?’ (2007) 157 NLJ 985.
 R (On the application of T and JB) v Secretary of State for the Home Department and another  UKSC 35,  AC 49.
 European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4.XI.1950)
 T (no 11) para 113.
 Police Act 1997, s.113A; s.113B.
 T (no11) para 119.
 Human Rights Act 1998, s.4.
 Police Act 1997, s.113A.
 Police Act 1997, 113A(6D).
 R (on the applications of P and another) v Secretary of State for Justice and another  EWHC 89 (Admin), 166 NLJ 7685.
 T (no 11).