Tag: employment vetting

Article 8 and enhanced criminal record certificates

Posted on | by Rachel Kamm

There have been a number of Panopticon posts about the lawfulness of disclosures in enhanced criminal record certificates. The latest decision is that of Mr Justice Stuart-Smith in R (L) v Chief Constable of Cumbria Constabulary [2013] EWHC 869 (Admin).

The principles are now well established. In R (L) v Commissioner of Police of the Metropolis [2010] 1 AC 410 the Supreme Court identified that s.113B (4) of the Police Act 1997 requires that information can only be included in an enhanced criminal record certificate if, in the Chief Officer’s opinion, the information might be relevant and ought to be included in the certificate. Where it is alleged that disclosure would breach an individual’s rights under Article 8 ECHR, the Court must take into account up to date information to reach its own judgment (without deference to the Chief Constable) as to whether or not there has been an interference with the applicant’s right to private life and, if such interference has occurred, whether it is lawful.

In this case, the claimant (“L”) was an experienced secondary school teacher aged in his mid-forties. He challenged the Chief Constable of Cumbria Constabulary’s decisions, communicated by letters dated 15 May and 27 July 2012, not to remove contested information from the “other relevant information” section of the claimant’s enhanced criminal record certificates.

The following is an example of the information disclosed to L’s prospective employers:

 “Cumbria Constabulary hold the following information which we believe to be relevant to the application of L  …. The information relates to an allegation of inappropriate behaviour towards a female pupil of the school where L was employed as a teacher. Cumbria Constabulary believe this information to be relevant to an employer’s risk and suitability assessment when considering L‟s application for the post of supply teacher with vision for education, working with children and vulnerable adults, because the information, which is considered likely to be true, indicates an abuse by L of the position of trust in which he was placed as a teacher.

The information held by police involves an allegation by an 18- year old female that on 07.05.10, whilst in licensed premises, L had inappropriately hugged her and persistently asked her to go home with him, offering her £200 to do so, causing her to feel vulnerable and harassed. The complainant was a pupil at the school where L was employed as a teacher and he had known her since she was 12 or 13 years of age when he was her teacher.

When interviewed by police, L agreed that he had been present that evening but denied all allegations stating that he had not seen or spoken to the complainant. No further police action was taken against L in relation to these allegations as the complainant was 18 years of age and therefore no criminal offences had been committed.

After careful consideration, Cumbria Constabulary considers that this information ought to be disclosed as the alleged incident of inappropriate behaviour occurred in relation to a female pupil of the school where L was a teacher at the time. The information is materially relevant to the post of supply teacher applied for in which L will have regular and unsupervised contact with children and young adults. The risks of similar inappropriate behaviour of a sexual nature by L towards vulnerable young persons must, in this instance, outweigh the prejudicial impact that disclosure may have on L‟s private life and employment prospects as a teacher.”

Mr Justice Stuart-Smith held that the Chief Constable was obliged and right to carry out an assessment of reliability, but that he did not have materials available to him that could justify a determination that some form of communication had taken place between the claimant and the pupil. There was ample material upon which the Chief Constable could have reached the conclusion that the pupil’s evidence may well have been reliable, but the real possibility remained that the allegations were without foundation.

Mr Justice Stuart-Smith went on to find that even if the allegations were true, “the risk disclosed by the one episode of which she complained was not shown to be anything other than slight and was a risk to a very limited class of persons in tightly defined circumstances” (namely, current and former pupils whom L might come across in a pub). The incident alleged was itself relatively minor in the overall scheme of sexually inappropriate behaviour and it was an isolated incident in a long career. The incident had not been properly or fully investigated.

Further, the disclosure was made in circumstances where both the General Teaching Council and the Independent Safeguarding Authority had concluded that there was no case to answer. However, the result of the disclosure “had been as severe for L’s employment prospects as if he had been convicted of a serious offence of sexual misconduct and placed on the Sex Offenders’ Register: it is a killer blow and its effects are likely to be long lasting”.

Mr Justice Stuart-Smith concluded that “any proper balancing exercise comes down in favour of the conclusion that this interference with L’s Article 8 rights is disproportionate and unjustifiable, particularly in a jurisdiction where people are generally to be presumed innocent until proved guilty … the defendant has not shown a pressing need for the disclosure, because of the limited circumstances in which a possible risk of repetition might arise and the relative lack of gravity of the alleged conduct. Nor has the defendant shown that the means used to impair L’s rights are no more than necessary to accomplish a legitimate objective”. The disclosures in the enhanced criminal record certificates had breached his Article 8 ECHR rights.

Rachel Kamm, 11KBW

Retention and disclosure of police caution data infringe Article 8

Posted on | by Charles Bourne

The European Court of Human Rights yesterday handed down a Chamber judgment in M.M. v United Kingdom (Application no. 24029/07) declaring that the arrangements for the indefinite retention of data relating to a person’s caution in a criminal matter and for the disclosure of such data in criminal record checks infringe Article 8 of the ECHR. Although the Court recognised that there might be a need for a comprehensive record of data relating to criminal matters, the indiscriminate and open-ended collection of criminal record data was unlikely to comply with Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and governing the use and disposal of such data, particularly bearing in mind the amount and sensitivity of the data. 

The case arose from a family dispute in Northern Ireland in the course of which the applicant, a grandmother, took her grandson away from his parents for two days before returning him unharmed. This resulted in her receiving a caution for child abduction in November 2000. In 2003 the police advised her that her caution would remain on record for only five years, i.e. until 2005. However, following the Soham murders and the Bichard report, there was a change of policy whereby any convictions and cautions where the victim was a child would be kept on record for the offender’s lifetime. 

Until 1 April 2008, requests for disclosure of criminal record data in Northern Ireland were made on a consensual basis. Disclosure took place in accordance with well-established common law powers of the police. Provisions of the Police Act 1997, introduced in England and Wales in 2006, were applied to Northern Ireland in 2008. Section 113A required a criminal record certificate to be issued on request and payment of a fee, to include details of all cautions and convictions whether spent or not, if the request was for stated purposes including that of assessing the suitability of persons to work with children and vulnerable adults.

Disclosure of the applicant’s caution caused her to be turned down for jobs as a family support worker in the social care field. She complained that the indefinite retention and disclosure of the caution data infringed her ECHR rights.

The Court noted that both the storing of information relating to an individual’s private life and the release of such information come within the scope of Article 8 § 1. The question was whether the police records contained data relating to the applicant’s “private life” and, if so, whether there had been an interference with her right to respect for private life. The data was both “personal data” and “sensitive personal data” within the meaning of the Data Protection Act 1998 and “personal data” in a special category under the Council of Europe’s Data Protection Convention. Although a person’s criminal record was public information, systematic storing of data in central records made them available for disclosure long after the event. As a conviction or caution receded into the past, it became a part of the person’s private life which had to be respected. The applicant’s voluntary disclosure of the caution to her prospective employer did not deprive her of the protection afforded by the Convention where employers were legally entitled to insist on disclosure. Thus Article 8 applied, and the retention and disclosure of the caution amounted to an interference.

To decide whether the interference could be justified under Article 8 § 2, the Court considered the legislation and policy applicable at the relevant time and since. It highlighted the absence of a clear legislative framework for the collection and storage of data and the lack of clarity as to the scope, extent and restrictions of what in Northern Ireland were originally common law powers of the police to retain and disclose caution data. There was also no mechanism for independent review of a decision to retain or disclose data. The provisions of the Police Act 1997 which came into force in Northern Ireland on 1 April 2008 created some limited filtering arrangements in respect of disclosures. However, in providing for mandatory disclosure under section 113A, no distinction was made on the basis of the nature of the offence, the disposal in the case, the time which had elapsed since the offence or the relevance of the data to the employment sought.

 The Court decided that the cumulative effect of these matters was an insufficiency of safeguards in the system to ensure that data relating to the applicant’s private life had not been, and would not be, disclosed in violation of her right to respect for her private life, and therefore the retention and disclosure of data was not “in accordance with the law” for the purpose of Article 8 § 2. The Court therefore did not go on to determine whether the interference was “necessary in a democratic society” for one of the stated aims, or whether there had been any infringement of Articles 6 and 7.

 Charles Bourne

 

ENHANCED CRB CHECKS – YET AGAIN

Posted on | by Timothy Pitt-Payne QC

The system of CRB checks (established under Part V of the Police Act 1997) is currently under review:  for the review’s terms of reference, see here.   At present, where an enhanced CRB check is carried out it is for the police to decide whether there is any non-conviction information that ought to be included in the enhanced CRB certificate:  for instance, information about acquittals, or about allegations that have never been tested at a criminal trial.  The legal principles governing this exercise – in particular, the relevance of Article 8 of the Convention – were extensively discussed by the Supreme Court in R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3.

The recent decision of the Court of Appeal in Desmond v Chief Constable of Nottinghamshire Police [2011] EWCA Civ 3 raises a different issue:  for the purposes of the law of negligence, do the police owe a duty of care to the individual who is the subject of the certificate?  The Court of Appeal holds that they do not.

In Desmond, the claimant’s case (put very shortly) was that adverse information about him had been included in an enhanced CRB check; that the information disclosed was misleading; and that the decision to disclose could not be justified on the basis of the material available to the police, and had been reached without making proper enquiries.  He brought a claim against  the relevant Chief Constable, alleging (inter alia) breach of Article 8, breach of the Data Protection Act 1998, and negligence.

The claim in negligence was struck out, but this decision was partly reversed on appeal by Wyn Williams J, whose judgment is at [2009] EWHC 2362 (QB).  On further appeal, the Court of Appeal restored the original decision to strike out the negligence claim in full.  There was no proper basis for concluding that the chief officer was to be taken to have assumed responsibility to Mr. Desmond; the structure and purpose of the relevant legislation strongly suggested that there should be no duty of care; there was no case which persuaded the Court of Appeal, by analogy, that a duty of care should be imposed; and the existence of various other remedies that Mr. Desmond could pursue also supported the conclusion that no duty of care was owed. 

The Court of Appeal also states that Article 8 of the Convention is likely to be applicable in every case where non-conviction information is disclosed as part of an enhanced CRB certificate, and that a breach of Article 8 would give rise to a potential damages claim under section 8 of the Human Rights Act 1998:  see paragraph 9 of the judgment.  It appears from the Court of Appeal’s judgment that Mr. Desmond’s Article 8 claim still continues, as does his claim under the Data Protection Act 1998. 

VETTING SCHEME HALTED

Posted on | by Timothy Pitt-Payne QC

According to a report on the BBC website this morning, implementation of the Safeguarding Vulnerable Groups Act 2006 is to be put on hold.  The Act introduces a requirement that a wide range of individuals working with children or vulnerable adults must register with the Independent Safeguarding Authority (ISA).  Registration was set to begin on 26th July, and was intended eventually to cover some 9 million people.  However, today the Government will announce that registration will be halted, pending a review of the 2006 Act, which is expected to lead to a scaling-back of the scheme.

The ISA will continue to be responsible for operating the two barring lists set up under the 2006 Act, which prohibit listed individuals from working with children and with vulnerable adults respectively.  And the provisions for standard and enhanced CRB checks (under Part V of the Police Act 1997) will continue to operate as before.

 

EMPLOYMENT VETTING IN THE COURT OF APPEAL

Posted on | by Timothy Pitt-Payne QC

Employment vetting is of great interest to information lawyers.  Any vetting scheme depends on the systematic sharing of information about individuals.  Such schemes will always give rise to difficult questions about fairness.  An important recent decision of the Court of Appeal explores some of these issues, in the context of article 6 of the European Convention on Human Rights (ECHR).

Governors of X School v Queen on the application of G [2010] EWCA 1 concerned a teaching assistant at X school (“the employee”), who was accused of having sexual contact with a 15 year old boy on work experience at the school.  The school governors conducted a disciplinary hearing, and dismissed the employee.  The employee brought judicial review proceedings to challenge the governors’ decisions not to allow him legal representation at the disciplinary hearing or at a forthcoming appeal hearing.  He argued that these decisions violated his right to a fair hearing, under article 6 of the European Convention on Human Rights (ECHR).  The employee’s claim succeeded at first instance.  The Court of Appeal upheld that decision, rejecting the governors’ appeal.

The basis of the employee’s claim was that an adverse finding in the disciplinary proceedings would expose him to statutory procedures that would prevent him from working with children.  The Court of Appeal summarised the relevant procedures, by reference to three phases in the employment vetting regime:  (i) the “list 99” procedure, under section 142 of the Education Act 2002, prohibiting certain individuals from working in education; (ii) the transitional regime, under the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”), whereby after 20th January 2009 certain cases under section 142 were referred to the new Independent Safeguarding Authority (ISA); and (iii) the substantive regime under the 2006 Act, whereby list 99 was replaced with effect from 12th October 2009 by the “children’s barred list”, established under section 2(1)(a) of the 2006 Act.

The Court of Appeal considered whether the school disciplinary proceedings were a determinant of the employee’s civil right to practise his profession as a teaching assistant, so as to engage article 6 of the ECHR.  Dismissal by the governors would not itself preclude the employee from practising his profession.  A decision to include the employee on a statutory barring list would, however, have that effect.  The question was whether the disciplinary proceedings had a substantial influence or effect on the barring proceedings, and therefore on the determination of the employee’s civil right to practise his profession. The answer was yes: therefore, the disciplinary proceedings engaged article 6.

The Court went on to consider whether article 6 required that the employee should be entitled to legal representation in the disciplinary proceedings.  Article 6 did not entail a right to legal representation in every case:  but in this case there was such a right, given the seriousness of what was at stake for the employee, and given the potential for legal representation to make a difference to the outcome.

The above analysis assumed that the case was to be treated as civil rather than criminal for the purposes of article 6.  The employee argued that the case ought to be treated as criminal:  given its other conclusions, the Court of Appeal did not need to decide this point.

The governors were a public authority under the Human Rights Act 1998, and therefore subject to the duty under section 6(1) of that Act, not to act incompatibly with Convention rights.  The implications of the Court of Appeal’s decisions for private sector employers are uncertain.  Such employers are not subject to the section 6(1) duty, and are not susceptible to judicial review.  But in an unfair dismissal claim against a private sector employer, the employee might well rely on Governors of X School in order to argue that a failure to permit legal representation would render any dismissal unfair.

The case is of very considerable importance.  It illustrates the wide consequences of the vetting scheme introduced by the 2006 Act.  The scheme will give rise to a host of difficult legal issues:  the Courts are only just beginning to explore them.

EMPLOYMENT BLACKLISTING – AN UPDATE

Posted on | by Timothy Pitt-Payne QC

We have previously blogged about this subject at some length:  see in particular this post in November last year.

A draft statutory instrument, under section 3 of the Employment Relations Act 1999, is now available here on the OPSI website.  The draft regulations are intended outlaw the compilation, dissemination and use of blacklists of trade unionists in the employment context.