Judgement
On 18 November 2008 The Honourable Mr Justice Wyn Williams, sitting in the High Court, handed down Judgment in the case of The Queen (on the application of S) v West Mercia Police. He adjudged that the Chief Constable of West Mercia Police had acted unlawfully in disclosing information about S to the Criminal Records Bureau ('CRB').
Implications
In so deciding, the Judge drew a line in the sand establishing that:
- A Chief Constable should not automatically and as a matter of course disclose information held by the police in respect of an individual.
- The Chief Constable of a police force must exercise rational and reasonable care and judgment in deciding what (if any) information should be disclosed to the CRB. In this case the Judge found that the Chief Constable had made an irrational and unreasonable decision to disclose information
- In circumstances where a person has been tried and acquitted of an offence, the Chief Constable should not delegate the decision-making process (as to whether and what information should be sent to the CRB) to a civilian administrator – as had happened in this case
- In many cases, it was necessary for the Chief Constable to carry out the assessment and not delegate at all
Beech Jones de Lloyd acted for S. The claimant's identity must (by order of the Court) remain anonymous. That is reasonable where a person has been:
- Charged, tried and acquitted of serious matters; and
- The presiding Magistrates declared that S had been mistakenly identified and in fact could not have been the perpetrator
The decision brings to an end what has been a very difficult time for S and his family, a man with no previous convictions and clearly totally innocent of the charges brought against him. We are pleased by the outcome of this case for S and his family.
We are also pleased because it does hold out in appropriate circumstances the real prospect of a successful challenge to a Chief Constable's decision to disclose otherwise confidential information to the CRB The Chief Constable of West Mercia may seek permission of the Court of Appeal to appeal against the judgment. We hope that he does not do so.
. Our client and his family have suffered enough already. Our client and we recognise that Parliament [by virtue of s.113B of the Police Act 1997] has imposed a significant administrative burden upon the police and, almost certainly in this case, the Chief Constable acted upon what appears to be erroneous advice from his force solicitors.
ECRCs: the Scheme In Bare Outline
The general idea is that a person who wishes to obtain a post where he may be in charge of or in contact with children or other vulnerable persons may be asked by his prospective employer to obtain an ECRC.
He sends off an application form to the Criminal Records Bureau and this is countersigned by a ‘registered person’ (originally, the prospective employer; but nowadays probably not). The CRB gets in touch with the relevant Chief Constable and an ECRC is generated. This is sent to the registered person.
In practice it is not so straightforward and we shall return to this later.
The Legislation
The ECRC scheme was first mooted in Part V of the Police Act 1997. The two principal sections were s.115 (which made provision for Enhanced Criminal Record Certificates and was afterwards repealed) and s.120 (which made provision for ‘registered persons’, and continues to be in force). However, such were the practical problems that the scheme was not brought into force for a long time and the Court may recall that there were serious backlogs late into 2002 with hundreds of thousands of teachers, dinner ladies et cetera trying to get their certificates.
On 6 April 2006 (S.I. 2006/378 reg. 7) section 115 was repealed by s.163 of the Serious Organised Crime and Police Act 2005 and replaced by s.113B. In relevant part it is as follows.
113B Enhanced criminal record certificates
(1) The Secretary of State must issue an enhanced criminal record certificate to any individual who -
(a) makes an application in the prescribed manner and form, and
(b) pays in the prescribed manner any prescribed fee.
(2) The application must -
(a) be countersigned by a registered person, and
(b) be accompanied by a statement by the registered person that the certificate is required for a prescribed purpose.
(3) An enhanced criminal record certificate is a certificate which -
(a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or
(b) states that there is no such matter or information.
(4) Before issuing an enhanced criminal record certificate the Secretary of State must request the chief officer of every relevant police force to provide any information which, in the chief officer´s opinion -
(a) might be relevant for the purpose described in the statement under subsection (2), and
(b) ought to be included in the certificate.
(5) The Secretary of State must also request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion -
(a) might be relevant for the purpose described in the statement under subsection (2),
(b) ought not to be included in the certificate, in the interests of the prevention or detectionof crime, and
(c) can, without harming those interests, be disclosed to the registered person.
(6) The Secretary of State must send to the registered person who countersigned the application -
(a) a copy of the enhanced criminal record certificate, and
(b) any information provided in accordance with subsection (5).
‘Every relevant police force’ does not include foreign police forces, which is a major hole in the scheme.
Enhanced Criminal Record Certificates: Some Preliminary Remarks
It is part of the traditional role of the courts to protect citizens from abuses of power, a version of which is popularly known as ‘Bureaucracy run mad’. The subordinate legislative scheme the court must consider in this case and the manner in which it has been applied reveals some worrying features.
The legislation to be described and the manner of its implementation is complex, but its purpose was to protect children and other vulnerable persons, and the end-product that Parliament had in mind was an Enhanced Criminal Record Certificate or ‘ECRC’.
How It Works In Practice
As stated, the scheme is that when an individual applies for a post he may sometimes be required to apply for an ECRC. The application form must give ‘Details of position for which Disclosure is being requested’. The application must be countersigned by a ‘registered person’ – the original idea (now abandoned) was that this would be the prospective employer. The application is sent to the Criminal Records Bureau, and they obtain the relevant information from the chief constable. The information is then sent to the applicant and to the ‘registered person’.
The first thing to notice is that the contents of an ECRC are likely to be taken seriously by any normal reader. It is, after all, an official certificate. It is true that the applicant may protest “It wasn’t like that; I deny it”. But a common reaction is likely to be “He would say that, wouldn’t he?” Therefore, accuracy is important, in order that innocent citizens be not seriously defamed. The second thing to notice is that the applicant has no way of knowing what is going to be in his ECRC – which might possibly contain a grievous error – before it is read by the ‘registered person’. Yet nothing in s.113B requires that the ‘registered person’ must be sent a copy of the ECRC before the applicant has had an opportunity to make representations and procure the correction of any errors.
When one thinks of a ‘registered person’ one might vaguely imagine a head teacher of the old school, sensible and trustworthy. That would be a mistake. A small organisation e.g. the average school is not allowed to become a ‘registered person’. It is forbidden by reg. 7(l) of the Police Act (Criminal Records) (Registration) Regulations 2006. To qualify as a ‘registered person’ it is necessary to be of such size as to countersign at least 100 applications per annum. Therefore to get the job done the prospective employer must use what is known as an Umbrella Body. Volume apart, there would appear to be no meaningful restrictions upon who can set himself up as an Umbrella Body, and many hundreds of them are listed on the website of the CRB. A great many of them are ordinary commercial recruitment agencies offering their services online. Anyone can approach such an organisation seeking information, and although there are supposed to be identity checks, the doing of them depends on the integrity of the service provider.
There have been numerous reports in the press about information corruptly obtained. A recent example is ‘Criminal records on sale for just £37’, The Sunday Times, August 24, 2008. The upshot so far is that information, perhaps highly sensitive, is sent out about the private lives of citizens. It will be obvious that such a scheme, to have proper integrity, requires someone to make a sensible adjudication about what information ought to be included in the ECRC. There must be some sort of balance between a genuine need to protect children and other vulnerable persons and the risk of grossly defaming an innocent citizen.
Who Is the Adjudicator?
The CRB exercises no independent judgment about what information ought to be included in an ECRC. It is a mere clearing house. The real decision is made by the relevant police authority. This is because s.113B(6) of the Police Act 1997 as amended says that the Secretary of Statemust send to the registered person who countersigned the application any information provided by the chief officer of police pursuant to subsection (5). Therefore the CRB has no option in the matter. The official website of the CRB confirms this. It says “The Chief Police Officer in each force will decide what, if any, information to provide. The CRB will print this information on both the applicant’s and the Countersignatory’s copy”.
In this case, the West Mercia police authority sub-delegated the adjudicatory task to a civilian with no discernible qualifications except some training in a code of practice, which she did not properly understand, and in the use of a flowchart. She did not have the case file and made no effort to find out the magistrates’ reasons for their decision, as she could have done, because she did not regard it as part of her task.
Most ECRCs will be “nil returns” i.e. the records do not show that any allegation whatever has been made against the applicant. In a minority of cases the records will show that there are cast-iron convictions, still live. Neither of those call for an exercise of judgment nor impose a burden on senior police officers.
In yet other cases, however, there will be citizens who have been charged with offences but have been acquitted. These do call for an exercise in judgement and Parliament entrusted that task to ‘the chief officer’ of the relevant police forces: s.113B(4) and (5). Parliament did not entrust it to the police force regarded as a body, nor to a civilian following a formulaic flow chart.
In order to exercise that judgement the adjudicator needs to take into account the probability or otherwise that the applicant was guilty in fact; the nature of the risk having regard to the employment that is being sought and hence the degree of vulnerability of those whom it is intended to protect; and, where those factors are not compelling, the need not to defame innocent citizens.
Certificates
The Concise Oxford Dictionary defines a certificate as ‘a formal document attesting a fact’. A fact may be false, and therefore not a fact, either because it is simply untrue or because it omits a material qualification. An illustration of the latter (originated by Denning LJ) is a statement that X was regularly seen entering a house of ill repute, omitting to add the reason, namely that X worked for the gas board and went to that house because he had to read the meter.
ECRCs are not issued in the abstract, but for a specific purpose. Thus s.113B(4) of the Police Act as amended requires the chief officer of every relevant police force to provide information which, in the chief officer’s opinion, might be relevant for the purpose of the statement under subsection (2), and ought to be included in the certificate.