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> Decisions made by police independently to disclose information
Decisions made by police independently to disclose information
In addition to police disclosure of information on request under the Police Act 1997 (considered above), the police may also be able to disclose information about you in certain circumstances whether or not information has been requested.
The fundamental rule is that police information - including information on convictions - should not be disclosed without the consent of the relevant person unless there are important considerations of public interest to justify departure from the general rule of confidentiality. This means that there must be a pressing social need and that the disclosure must be proportionate. Comments made in police interviews, for example, are in principle confidential and remain so if not used in criminal proceedings. The police are not generally entitled to punish people themselves, and cannot do so by ‘naming and shaming’ people about whom they have information such as previous convictions.
Exceptions to the general principle of non-disclosure may arise where, for example, there is a need to:
The circumstances where the police will generally report convictions to particular types of employer or professional bodies (and also cautions where the job involves substantial access to children) are set out in Home Office Circular 6 / 2006: The Notifiable Occupations Scheme: Revised Guidance for Police Forces. This guidance distinguishes between two different categories of cases.
The first, Category 1, applies where there are likely to be substantial public interest considerations, where it comes to notice that an individual is working in a profession or occupation (whether as an employee or volunteer) bearing special trust and responsibility, and specifically in cases relating to the three areas considered above:
The second category of cases, Category 2, applies to less sensitive professions or occupations where probity and integrity may nevertheless be an important factor in preventing crime. For example, this applies to those with particular financial responsibilities. In these cases, a conviction or other information should only be shared with the relevant interested person or body if it is relevant to do so.
For these purposes, “relevance” is to be determined in line with Home Office Circular 5/2005, Criminal Records Bureau: Local Checks by Police Forces for the Purpose of Enhanced Disclosures. This Circular was issued in connection with disclosure under the previous Enhanced Criminal Records Certificates regime..
In the context of situations which would fall within Category 2, the test of relevance needs to be set and applied according to the specific post applied for. The Circular explains that:
“…information should only be disclosed if there is clear reason to be believe that it might be materially relevant – i.e., not fancifully, remotely or speculatively relevant but materially relevant. For example, information should not be disclosed on the basis that, although there is no apparent reason to believe that it is relevant, it could conceivably turn out to be. Information should only be disclosed if there is clear reason to believe that it is or might be relevant… The mere fact that a person has behaved badly, or is believed to have done so, is not relevant... [I]nformation should not be provided unless it has a direct bearing on the matter in hand.”
Specific professions and areas of work which fall into either Category 1 and Category 2 are listed in annexes to Circular 6/2006.
In accordance with the requirements of fairness and respect for Article 8 rights, disclosure of this type of information should generally occur after notifying the person affected. The person should be given a proper opportunity to make an application to the court before disclosure takes place if he or she believes the disclosure is unjustified. Moreover, the disclosure will need to be for a pressing social need and proportionate, and the police must consider each case on its own facts.
Circular 6/2006 was implemented as a direct consequence of the Bichard Inquiry recommendations. Depending on how successful its application is considered to be, policy in this area may well be subject to further reforms.
Government policy on the disclosure of information by police in circumstances not covered by Circular 6/2006 is set out in Home Office Circular 047/2003, Revised Arrangements for Police Checks. This guidance provides that police checks for employment purposes should generally follow the procedures for disclosure of information through the CRB. It suggests that very exceptionally the police should be prepared to carry out emergency police checks where someone is likely to have substantial unsupervised access to the vulnerable, and the CRB is unable to process the application within the time available.
Circular 047/2003 also identifies circumstances where the CRB procedures are not appropriate, including checks for jury service or other cases where disclosure to the individual person may not be appropriate. The Circular emphasises that the governing principle in these cases is for the police to safeguard sensitive personal information. They must not disclose it to a third party unless there is good justification. Even if a case has been tried in open court and the subject of media reports, disclosure of information by the police for operational purposes will not be justified, whether the information is details of conviction or other intelligence. While the police have common law powers to disclose such information, disclosure is the exception rather than the rule. Any decision to disclose must be taken having regard to the ROA, the Data Protection Act 1998 and the HRA. Disclosure will constitute an interference with your Article 8 rights which the police must be able to justify.
Annex B, Part 1 of Circular 047/2003 identifies those persons who will continue to be checked by the police outside the provisions of the CRB. Those persons include motor salvage operators, parties to divorce and co-habitees or future marital partners where there is a request from a court welfare officer enquiring into child welfare issues, nuisance neighbours and parents to whom a local authority proposes to return a child in care.
Sarah's Law
There is provision in the law for information about convicted child sex offenders to be disclosed to members of the public in particular circumstances. This provision has become colloquially known as “Sarah’s Law”, in memory of Sarah Payne, a child brutally murdered by a convicted child sex offender. This law allows parents, carers and guardians to formally ask the police to tell them if a person has a record for certain sexual abuses. The legislation that authorises “Sarah’s Law” is contained in amendments to the Criminal Justice Act 2003 (the “CJA 2003”) introduced earlier this year.
Section 235(2) of the CJA 2003 imposes a general obligation on the responsible authority for each area to establish arrangements to assess and manage risks posed in that area by certain sexual and violent offenders. In exercising this obligation, section 237A obliges the responsible authority to disclose certain information to the public about child sexual offenders. This is the part of the legislation that has been labelled “Sarah’s Law. Section 237A(1) states that the responsible authority must consider whether to disclose information in its possession about the relevant previous convictions of any child sex offender managed by it to any particular member of the public. The law creates a presumption that the responsible authority should disclose the information if the child sex offender poses a risk to a particular child or to children of a particular category, and disclosure is necessary to protect that child or those children.
The fundamental rule is that police information - including information on convictions - should not be disclosed without the consent of the relevant person unless there are important considerations of public interest to justify departure from the general rule of confidentiality. This means that there must be a pressing social need and that the disclosure must be proportionate. Comments made in police interviews, for example, are in principle confidential and remain so if not used in criminal proceedings. The police are not generally entitled to punish people themselves, and cannot do so by ‘naming and shaming’ people about whom they have information such as previous convictions.
Exceptions to the general principle of non-disclosure may arise where, for example, there is a need to:
- Protect vulnerable members of society.
- Ensure good and honest administration of the law.
- Protect national securit.
The circumstances where the police will generally report convictions to particular types of employer or professional bodies (and also cautions where the job involves substantial access to children) are set out in Home Office Circular 6 / 2006: The Notifiable Occupations Scheme: Revised Guidance for Police Forces. This guidance distinguishes between two different categories of cases.
The first, Category 1, applies where there are likely to be substantial public interest considerations, where it comes to notice that an individual is working in a profession or occupation (whether as an employee or volunteer) bearing special trust and responsibility, and specifically in cases relating to the three areas considered above:
- protection of the vulnerable, including children;
- national security; and
- probity in the administration of justice.
The second category of cases, Category 2, applies to less sensitive professions or occupations where probity and integrity may nevertheless be an important factor in preventing crime. For example, this applies to those with particular financial responsibilities. In these cases, a conviction or other information should only be shared with the relevant interested person or body if it is relevant to do so.
For these purposes, “relevance” is to be determined in line with Home Office Circular 5/2005, Criminal Records Bureau: Local Checks by Police Forces for the Purpose of Enhanced Disclosures. This Circular was issued in connection with disclosure under the previous Enhanced Criminal Records Certificates regime..
In the context of situations which would fall within Category 2, the test of relevance needs to be set and applied according to the specific post applied for. The Circular explains that:
“…information should only be disclosed if there is clear reason to be believe that it might be materially relevant – i.e., not fancifully, remotely or speculatively relevant but materially relevant. For example, information should not be disclosed on the basis that, although there is no apparent reason to believe that it is relevant, it could conceivably turn out to be. Information should only be disclosed if there is clear reason to believe that it is or might be relevant… The mere fact that a person has behaved badly, or is believed to have done so, is not relevant... [I]nformation should not be provided unless it has a direct bearing on the matter in hand.”
Specific professions and areas of work which fall into either Category 1 and Category 2 are listed in annexes to Circular 6/2006.
In accordance with the requirements of fairness and respect for Article 8 rights, disclosure of this type of information should generally occur after notifying the person affected. The person should be given a proper opportunity to make an application to the court before disclosure takes place if he or she believes the disclosure is unjustified. Moreover, the disclosure will need to be for a pressing social need and proportionate, and the police must consider each case on its own facts.
Circular 6/2006 was implemented as a direct consequence of the Bichard Inquiry recommendations. Depending on how successful its application is considered to be, policy in this area may well be subject to further reforms.
Government policy on the disclosure of information by police in circumstances not covered by Circular 6/2006 is set out in Home Office Circular 047/2003, Revised Arrangements for Police Checks. This guidance provides that police checks for employment purposes should generally follow the procedures for disclosure of information through the CRB. It suggests that very exceptionally the police should be prepared to carry out emergency police checks where someone is likely to have substantial unsupervised access to the vulnerable, and the CRB is unable to process the application within the time available.
Circular 047/2003 also identifies circumstances where the CRB procedures are not appropriate, including checks for jury service or other cases where disclosure to the individual person may not be appropriate. The Circular emphasises that the governing principle in these cases is for the police to safeguard sensitive personal information. They must not disclose it to a third party unless there is good justification. Even if a case has been tried in open court and the subject of media reports, disclosure of information by the police for operational purposes will not be justified, whether the information is details of conviction or other intelligence. While the police have common law powers to disclose such information, disclosure is the exception rather than the rule. Any decision to disclose must be taken having regard to the ROA, the Data Protection Act 1998 and the HRA. Disclosure will constitute an interference with your Article 8 rights which the police must be able to justify.
Annex B, Part 1 of Circular 047/2003 identifies those persons who will continue to be checked by the police outside the provisions of the CRB. Those persons include motor salvage operators, parties to divorce and co-habitees or future marital partners where there is a request from a court welfare officer enquiring into child welfare issues, nuisance neighbours and parents to whom a local authority proposes to return a child in care.
Sarah's Law
There is provision in the law for information about convicted child sex offenders to be disclosed to members of the public in particular circumstances. This provision has become colloquially known as “Sarah’s Law”, in memory of Sarah Payne, a child brutally murdered by a convicted child sex offender. This law allows parents, carers and guardians to formally ask the police to tell them if a person has a record for certain sexual abuses. The legislation that authorises “Sarah’s Law” is contained in amendments to the Criminal Justice Act 2003 (the “CJA 2003”) introduced earlier this year.
Section 235(2) of the CJA 2003 imposes a general obligation on the responsible authority for each area to establish arrangements to assess and manage risks posed in that area by certain sexual and violent offenders. In exercising this obligation, section 237A obliges the responsible authority to disclose certain information to the public about child sexual offenders. This is the part of the legislation that has been labelled “Sarah’s Law. Section 237A(1) states that the responsible authority must consider whether to disclose information in its possession about the relevant previous convictions of any child sex offender managed by it to any particular member of the public. The law creates a presumption that the responsible authority should disclose the information if the child sex offender poses a risk to a particular child or to children of a particular category, and disclosure is necessary to protect that child or those children.
