s117(5) [now s.113(A) and 113(B)] of the Police Act 1997 allows for employers in certain situations to apply to the Criminal Records Bureau for an 'enhanced' disclosure'.
This disclosure is very different to the 'standard' disclosure that most people are familiar with and it is important for people to recognise the distinction between the two.
A standard disclosure is that which lists, in factual, chronological order, any convictions, reprimands, cautions or police warnings that a person has received. These are largely uncontentious.
An enhanced disclosure, however, is very different. This document, as well as listing that which is contained within a standard discloure, also allows, on the reverse of the document, for the Chief Constable of any Police Force to discretionarily disclose 'any information which he or she deems relevant'.
This 'discretionary' disclosure is not limiited to facutal, proven legal matters such as convictions. Instead the Police are encouraged to disclose anything which is held on the Police computer database, including (but not limited to):
– Incidents where the Police are called and they take the name of parties associated with, but incidental to, the person they are actually investigating
– Incidents where the Police are called and a record of the incident is taken but no further action is deemed necessary
– Incidents where a person is arrested for an offence but is not charged
– Incidents where a person is charged with an offence but the case is dismissed prior to trial
– Incidents where a person is charged with an offence but if found not guily at trial
– Incidents where a person is found guilty of an offence at trial but where the conviction is quashed on appeal to either the Court of Appeal or the House of Lords/Supreme Court
In all of the above circumstances the Police will lean on the side of caution and make a discretionary disclosure, will in almost all cases results in an offer of employment being revoked and/or a person being dismissed from their employment
This situation is absolutely contrary to any Rule of Law in a democratic country and especially to the UK, for two reasons:
Firstly, the UK has a long and treasured history of a person being judged by a competant Court when a finding of innocence or guilt in a criminal matter is to be determined. In every single Criminal proceeding, the Defendant is presumed to be innocent until proven guilty, and even if a person is found guilty, he may still later clear his name through the appeal process, which is in place to correct any miscarriages of justice.
A person who undergoes due process and emerges with his or her name cleared should be absolved entirely of any suspicion of guilt. That is the whole point in having a legal system of magistrates, judges, juries and Appellate Courts. If the Police wish to retain records for the purpose of future crime detection then they should be allowed to do so but they should NEVER be made public in circumstances where a person has been cleared of any guilt.
Secondly, and despite the feeble response of the Superior Courts of England and Wales in a number of well-documented cases, this legislation clearly IS incompatible with Art.8 of the European Convention on Human Rights which provides that a person in any signatory country is entitled to 'respect for his personal and family life'. There can be nothing more personal and private than a persons previous, unsubstantiated dealings with the legal system and to disclose these causes considerable hardship, both social and economic, to such an individual. Even the Court in R v Commissioner of Police  UKSC3 accepted that:
"…The reality will often be,as Baroness Hale of Richmond said in R (Wright) and others v Secretary of State for Health  UKHL 3;  2 WLR 267, para 22, that the particular job will be lost to the applicant for good and that she will be most unlikely to be able to obtain any other job of that kind. The way the system is operated ensures that the same information will always be disclosed whenever she applies for one. This has all the hallmarks of a rather
For people who might believe that cases of this kind are rare, consider the following.
In 2005, the Court of Appeal overturned a ruling of first instance in which it had been held that a man who had lost his job as a result of damaging 'discretionary' disclosures was entitled to make representations first to the Chief of Police. The Court of Appeal held that the man, a social worker of many years experience with no criminal convictions or record of any kind, was not entitled to claim that the Police had wrongly disclosed accusations of indecent assualt even though the accustaions had not even resulted in his being charged with an offense when his accuser failed to indentify him [R(X) v West Midlands Police  1WLR 65].
In 2008 John Pinnington, a deputy headteacher, was dismissed from his employment when he was required by his employer to transfer to another position and to apply for an enhanced CRB. The enhanced document showed that Mr Pinnington had been accused of sexually abusing three boys in his care. All three charges against him were dropped, well before the scheduled trial, due to serious deficiencies in the evidence given by the autistic boys. Pinnington was nevertheless immediately dismissed from his employment as a result of the discretionary discolsure. On application for judicial review of the decision of the Police to mke these disclosres, the High Court held that the Police had a duty to disclose "if the Police had reasonable beliefe that the allegations might be true", in spite of the fact tht the court accepted that all three cases suffered from 'major weaknesses'. [R ex pt Pinnington v Thames Valley Police  EWHC 1870.
In 2009 a lecturer in Law at Newcastle College was dismissed from his position of employment after an enhanced CRB document disclosed that he had been been convicted of indecent assault in 1999. This conviction had been quashed by the Court of Appeal in March 2000 and the man had no other criminal convictions of any kind. The college, who had employed the man for just under a year without incident, dismissed him as they deemed that he posed 'an unjustifiable risk to the students in his care'.
In the same year a woman was refused in her application for voluntary, chartiy work, when an enhanced CRB check revealed that she had once been 'spoken to' (not cautioned or reprimanded) by Police for leaving her children to play in the park while she popped to her local shop. She was deemed too dangerous to work voluntarily with children (http://www.guardian.co.uk/global/2009/jul/15/criminal-records-bureau-database).
There is, of course, a pressing need to protect the vulnerable in society, but this legislation is using the proverbial tank to dispatch a peanut and is, in the process, destroying the lives of innocent, law abiding and hard working people. It needs to be repealed without delay.