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> Consideration by Prospective Employers of Information disclosed by CRB
Consideration by prospective employers of information disclosed by CRB
It is for the prospective employer or particular organisation to decide upon your suitability for the position, taking into account only those offences and information which may be relevant to the particular job in question. They may consider such matters as the nature of the offence, when it occurred and its frequency. The fact that you have a criminal record does not automatically mean that you are unfit for particular employment or unfit to work with children or vulnerable adults.
All those registered bodies entitled to make joint applications for a Criminal Records Check are required to adhere to a Code of Practice published by the Secretary of State designed to ensure that the information released by the CRB is used sensibly and fairly . Failure to comply with the Code may lead to the CRB refusing to disclose information to them , and may also lead their being struck off the register of persons entitled to apply for Intermediate or High Level Checks. In practice this could have very serious consequences for their ability to continue operations.
The Code of Practice expects Registered Bodies to have written policies on the recruitment of ex-offenders and to store certificates securely and dispose of them once used, and the CRB has produced some model policy statements which they can look to for guidance . They will also be expected to have proper procedures to ensure that the relevance of any conviction to the particular position is carefully assessed, so that persons are not unfairly excluded from employment opportunities.
It is a criminal offence to make a false certificate, to alter an existing certificate, to use someone else’s certificate as your own or to allow someone else to use your certificate as his or her own, with intent to deceive. It is also a criminal offence for a person to disclose information provided for the purpose of a Criminal Record Certificate or Enhanced Criminal Record Certificate in an unauthorised manner, and without the consent of the person to whom the certificate relates or without some other statutory authorisation.
The disclosure of information under this system and use of that information by prospective employers is still generally subject to your right to respect for privacy under Article 8. It is clear that disclosure and use of information about you in this way will generally constitute an interference of your right to respect for privacy. It will therefore only be permissible if it can be justified under Article 8(2). In most cases where the certificates are being used, the interference is likely to be for a legitimate aim since it will be directed at the prevention of crime, the protection of morals and the protections of the rights of others. The interference must still, however, be necessary and proportionate to that legitimate aim. Blanket policies of disclosure, or disclosure of material which is plainly irrelevant to your particular circumstances, could well amount to a breach of Article 8 of the Convention. Disclosure of information which is untested and which has not resulted in any criminal conviction - such as uncorroborated allegations from informants or criminal investigations, also has the potential to amount to breaches of other basic rights such as the presumption of innocence contained in Article 6(2) of the Convention where being used in determination of a civil right or obligation. But this will inevitably depend upon your particular circumstances and the method and purpose of the disclosure.
In January 2004 the High Court considered a Chief Constable’s use of the powers of disclosure of other relevant information on an Enhanced Criminal Record Certificate. The court emphasised that the Chief Constable was required to exercise those powers carefully, and carry out an assessment of the likely impact on the applicant of releasing any such information. The information released must generally be reliable, when viewed objectively. Significantly, where a Chief Constable has provisionally decided to release ‘other relevant information’ on the certificate itself, fairness will often require that the person affected should have an opportunity to make representations to the Chief Constable before that disclosure takes place. Where these principles of fairness are not observed, you may be able to challenge the issue of the Certificate and the disclosure of the information and obtain a new Certificate. In a more recent case heard in early 2007, the Court of Appeal confirmed that ‘other relevant information’ need not be restricted to information of a person’s propensity to commit crime.
Independent Monitor
One significant development is the proposed creation of an independent monitor responsible for reviewing police performance in exercising their functions relating to criminal records, and to ensure that it is compatible with rights to respect for privacy under Art. 8.
The Independent Monitor will have to review every case where ‘other relevant information’ is revealed without the relevant person’s knowledge to a potential employer/organization ‘off’ the Enhanced Criminal Record Certificate. The Monitor will also have to review a sample of cases where ‘other relevant information’ is revealed on the Certificate itself. Although the Monitor will make recommendations to the Secretary of State about law and policy relating to criminal records certificates, it will not be part of the Independent Monitor’s role to resolve specific complaints made by individuals. At the time of writing, although the law creating this Independent Monitor has come into force, no one as yet been appointed to the post.
All those registered bodies entitled to make joint applications for a Criminal Records Check are required to adhere to a Code of Practice published by the Secretary of State designed to ensure that the information released by the CRB is used sensibly and fairly . Failure to comply with the Code may lead to the CRB refusing to disclose information to them , and may also lead their being struck off the register of persons entitled to apply for Intermediate or High Level Checks. In practice this could have very serious consequences for their ability to continue operations.
The Code of Practice expects Registered Bodies to have written policies on the recruitment of ex-offenders and to store certificates securely and dispose of them once used, and the CRB has produced some model policy statements which they can look to for guidance . They will also be expected to have proper procedures to ensure that the relevance of any conviction to the particular position is carefully assessed, so that persons are not unfairly excluded from employment opportunities.
It is a criminal offence to make a false certificate, to alter an existing certificate, to use someone else’s certificate as your own or to allow someone else to use your certificate as his or her own, with intent to deceive. It is also a criminal offence for a person to disclose information provided for the purpose of a Criminal Record Certificate or Enhanced Criminal Record Certificate in an unauthorised manner, and without the consent of the person to whom the certificate relates or without some other statutory authorisation.
The disclosure of information under this system and use of that information by prospective employers is still generally subject to your right to respect for privacy under Article 8. It is clear that disclosure and use of information about you in this way will generally constitute an interference of your right to respect for privacy. It will therefore only be permissible if it can be justified under Article 8(2). In most cases where the certificates are being used, the interference is likely to be for a legitimate aim since it will be directed at the prevention of crime, the protection of morals and the protections of the rights of others. The interference must still, however, be necessary and proportionate to that legitimate aim. Blanket policies of disclosure, or disclosure of material which is plainly irrelevant to your particular circumstances, could well amount to a breach of Article 8 of the Convention. Disclosure of information which is untested and which has not resulted in any criminal conviction - such as uncorroborated allegations from informants or criminal investigations, also has the potential to amount to breaches of other basic rights such as the presumption of innocence contained in Article 6(2) of the Convention where being used in determination of a civil right or obligation. But this will inevitably depend upon your particular circumstances and the method and purpose of the disclosure.
In January 2004 the High Court considered a Chief Constable’s use of the powers of disclosure of other relevant information on an Enhanced Criminal Record Certificate. The court emphasised that the Chief Constable was required to exercise those powers carefully, and carry out an assessment of the likely impact on the applicant of releasing any such information. The information released must generally be reliable, when viewed objectively. Significantly, where a Chief Constable has provisionally decided to release ‘other relevant information’ on the certificate itself, fairness will often require that the person affected should have an opportunity to make representations to the Chief Constable before that disclosure takes place. Where these principles of fairness are not observed, you may be able to challenge the issue of the Certificate and the disclosure of the information and obtain a new Certificate. In a more recent case heard in early 2007, the Court of Appeal confirmed that ‘other relevant information’ need not be restricted to information of a person’s propensity to commit crime.
Independent Monitor
One significant development is the proposed creation of an independent monitor responsible for reviewing police performance in exercising their functions relating to criminal records, and to ensure that it is compatible with rights to respect for privacy under Art. 8.
The Independent Monitor will have to review every case where ‘other relevant information’ is revealed without the relevant person’s knowledge to a potential employer/organization ‘off’ the Enhanced Criminal Record Certificate. The Monitor will also have to review a sample of cases where ‘other relevant information’ is revealed on the Certificate itself. Although the Monitor will make recommendations to the Secretary of State about law and policy relating to criminal records certificates, it will not be part of the Independent Monitor’s role to resolve specific complaints made by individuals. At the time of writing, although the law creating this Independent Monitor has come into force, no one as yet been appointed to the post.
