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“Legal Minds Agree” that CRB is a breach of human rights

iStock_000016822421MediumIn a landmark ruling, the Court of Appeal has ruled that the law which requires people to disclose all previous convictions to certain employers is a breach of human rights.

In this case, a 21 year old man wanted cautions to be removed from his criminal record. His crime, being accused of stealing two bicycles at aged 11. Information about the cautions had been flagged up when applying for a part-time job at a local football club at the age of 17 and later when he applied for a university course in sports studies.

An urgent reform of the Criminal Records Bureau is required. This case highlights how the Coalition’s reforms have not gone far enough and the CRB system continues to lead to absurd results in too many cases, including thousands of people being wrongly branded criminals.

The Home Office’s has described the ruling as being ‘disappointing’ and that ‘the protection of children and vulnerable groups must not be compromised’. In this instance the little boys actions were clearly stupid and probably very naïve. However, it is simply disproportionate that an error of judgement made as a child should affect the jobs you apply for as an adult.

In another case, Simon Western, the Falklands veteran, had to pull out of the police and crime commissioner elections because he had received a fine for being a passenger in a stolen car at aged 14. Western warned that “so many good people” were being written off and he is pleased that “legal minds agree”.

The CRB system needs reforming not only due to the disclosure process but also due to the number of errors that are made. We also recently revealed the scale in the criminal record check system highlighting that nearly 12,000 people over the past five years had been wrongly branded as criminals or had had irrelevant or inaccurate information disclosed during criminal record checks.

It has been argued that it is for the employer to make a sensible judgement about whether to hire someone when they receive the CRB check on an employee. However, what we have seen is that employers, especially in the public sector, have become so worried that they will be held responsible for their employees’ actions that they are accepting the absolute nature of the CRB.

To highlight the disproportionate nature of the system we can simply look to other countries in Europe, where laws prevent employers being told about spent or minor convictions. One example being in the Netherlands, where fines of 100 euros or less given for minor crimes are not treated as criminal convictions for the purposes of a CRB check,

As the Magistrates Association has warned, the use of cautions is spiralling out of control, denying victims punishment where it is warranted and ruining the careers of people who have committed trivial indiscretions. It is absolutely right that children and vulnerable people are kept safe, however if a person has been deemed to be a danger to the public by the police they should have received a criminal conviction rather than a caution.

The system of cautions and the system of criminal record checks need fundamental reform, starting with a legal right for minor offences to be wiped from police records after a reasonable period of time. The judges involved in the caser have now said that it is up to Parliament to devise a ‘proportionate’ scheme. Reforms should start with a legal right for minor offences to be wiped from police records after a reasonable period of time.

Posted on January 30, 2013 by Emma Carr Posted in CRB check, Human Rights Act, Legal Action, Privacy
  • rottweiller11

    i have a problem with crb the chief constable added his own spin on my crb check and took it upon himself to add that i had shot someone in the head during an incident,this w@@@@@ has prevented me from obtaining employment with the probation service since 2008, i did complain to him and the information commissioner but the onus was left with me to proove otherwise i would like to fight it

    • John Name

      Have you considered suing the Chief Constable for defamation/libel?

  • Mr ex offender

    I have a very petty crb record however, it seems to impede my chances of employment after 22 years of staying out of trouble, i’d like to play on a level playing field with the rest of Europe, but in uk we have a system that’s only immigrant friendly, No one can read what people from abroad have done wrong during in their childhood.In many of these places , they don’t have a police force let alone a crb system . typical Britain , a mass cock up ! organised by over paid twerps ! how many people have we allowed into Britain so far,that we know nothing about ? no one knows !!!

    • Jimbomcg

      you’re absolutely right! trouble is although grossly unfair and Draconian measures can be introduce at the stroke of a pen it is a long uphill struggle to modify or repeal them in a police state like the UK.

  • maria

    I have a caution for common assaul which was given to me when I defended myself after an umber of domestic violence incidents having this caution has stopped me from furthering or getting another job in the care industry not only has it stopped me working it has kept me still within the graps of the person who has not only hit ad beaten and hospitised me as I rely on them now financially to support me and my yougest child wh is still at scool I have to work 60 plus hours a week as a care assistant but I cannot leave and work for a new employer because of my caution. This is so upsettig to think I am reagede as very good careing hard working employee but can not leave my current employer as I will not be employed elsewhere ( I know this as have tried and was accepted until crb check came back, I was enformed by police it lasts 5 years which is not true) and most of all I still am relying on the person who put me in this position as I cannot afford to cease contact. This is totally reuning mine and my kids life.

    • mr very unhappy

      i fully understand , i am looking for work currently, I too have 2 kids . I have a few petty offences from when i was a youngster, making these offences available to employers, puts us at an instant disadvantage.because of peados, people that abuse the elderly & the weak. Terrorism has added to the problem with more security checks.
      Things are bad enough here,with the masses of people from around the world who have come to England , that we know nothing at all about. i’d like to compete on a level field with them . I’m sure there are many many people , just like us :( !

    • http://deepchange.wordpress.com/ Alastair McGowan

      Discrimination clear and simple. Go to citizens adice, get some advice, they may say get a solicitor, and ask for help from other organisations, do it. Get the law on your side, get your own conviction put in context and the explanation written down so it can be presented to an employer. If an employer, after reading the full explanation, refuses to employ you based on that then go to a solicitor, get the help, sue them, there is now case law to say that they are not within their rights to do so. Sue them for a lot of money and change your life circumstances.

  • http://deepchange.wordpress.com/ Alastair McGowan

    The idea that disclosure to an employer/university and their adjudication on whether an offence or caution is predictive of probability of the person causing harm is some valid form of assessment of risk is laughable. The police may (most likely do not) have the skills and statistical base to use criminal records as a prediction of future behaviour, but this was not what criminal records were originally intended for. The record is only valid in general relationships as an incremental assessment of past behaviour, not future behaviour. Its use for prediction of future behaviour has never been tested and the evidence never published for all crime types. A police officer may have access to such data but an employer does not. There may or may not be any predictive relationship between stealing a bicycle at age 11 and whatever the university believe would be a risk of studying sport science. If any assessment is made it should be by the police and if appealed against should be challengable against publicly available evidence in a court

    • http://deepchange.wordpress.com/ Alastair McGowan

      My gobblegook above is extermely overcompressed. Let me expand with an example: if a person has an offence of rape against a child on their record and there is a 1:10 statistical chance they will repeat that offence then you would justifiably never them near children, ever.
      However, if the chance of them going on to rape an adult is let’s say (for the sake of the argument) 1:10,000 and the same as the average population, (or again for the sake of argument, LESS than the general population, and without any evidence can I say maybe this is possible?) then you would not have grounds to prevent them working with vulnerable adults, or in further education, and so on. If the risk were less then you would be obliged to favour them for the job – and why not, they would be a better candidate since the risk of abuse would be less!
      The problem is that employers/universities are being asked to make these decisions on a binary basis selective without all the data such as probabilities of offending predicted by earlier offending, and then cross-tabulated based on type of offending. The data is just not being collected, or is at best a set of assumptions traded implicitly among police officers. Worse still they are being asked to make such judgements based on records of ‘police caution’ and possibly even hearsay ‘evidence’. What could work well as an evidence-based assessment is really a catch-all safety net which allows that if there is so much as a whiff that someone may have broken a law then they are not to be trusted. This is, as the Court of Appeal has ajudged, a breach of human rights.
      It is a form of deep discrimination that sweeps up millions in order to stop thousands from being put at risk. A more evidence based approach using statistics would at least narrow this safety net considerably down to risk based on evidence and permit better prediction of harm (and safety).
      I speak as someone who was convicted at age 17 of a traffic offence (and 2 decades before I could Google for some information and avoid it) of ‘using a tax disc fraudulently’ because I niaively assumed that when I put a new frame on my motorbike and there was no option on the registration form to change the chassis number that I did not have to do anything with the DVLA. I had this brought up at job interviews several times because they were concerned about the word ‘fraud’. Just the word fraud, combined with my stumbling and shamed attempts to explain that the 17 year old me ‘really was that stupid to make rapid assumptions in my haste to get back on the road’ convinced them that I may well be a fraudster in the making, if not then just more stupid than my CV told. It would probably have been enough to damage my job prospects, if as there is these days, intense competition for jobs. But I am just speculating ;-)
      It concerns me that employers make fast assumptions and any whiff of wrongdoing leads to mass discrimination. Especially (from my own perspective) against people who like me often come into contact with the law because we are either a bit dim and too quick, over-assertive of our rights, or not easily able to speak up for themselves and accept cautions as an easy way out, or attend demonstrations, or get into arguments with bosses, and generally try to assert ourselves towards authority.
      People being overlooked in job selection because false assumptions are being made about their positive and negative attributes – this is a topic in Personnel Selection and Appraisal research which shows consistently that employers make consistently bad decisions based on false assumptions and discard the evidence in favour of biases.
      I suggest that assessments of risk should be carried out by an agency that transparently bases its conclusions and recommendations to an employer on statistical data that has predictive validity. With that we have a minimisation of discrimination AND an empirical tool with which to protect people from harm. At present we have a system that is not being monitored for efficacy (and no idea how well if indeed it does diminish harm – do people go underground choosing unregulated areas of work and cause more harm?), it discriminates against people, and breaches human rights of employees and potentially of people at risk too. If employers can make wild assumptions then that last statement should be taken with equal validity?

  • Mr Very Unhappy

    I’ve been job hunting for a while now. i have a few petty convictions from when i were a lad.

    In the old days i used to walk around the job center & all the available jobs would be displayed on a board, ready to quickly find a suitable job. Now i find myself trolling though every job on a computer on various sites, in my field only to find that the job requires a enhanced crb or a standard crb check. ive spent hours & hours looking.

    As we are running this kind of system. I’ve decided to complain to the job center , I’d like to have a crb section & non crb section .

    We have Age discrimination , sex , Religion, ect ect ,

    I’m fit, active and actively seeing employment with 2 children to provide for. This is becoming the biggest obstacle so far, as i’m reluctant to disclose any of my personal data to a third party, and cant stand the thought of being humiliated during a job interview by someone i don’t know.

    The Government seem all tied up with gay marriage, at the moment, but i’m sure if enough people complain they might get around to looking into it .

  • henrythedog

    i was a coach for a kids rugby team . i disclosed a caution. the dbs certificate was sent to me showing the caution.i was then told by the RFU i was required to provide as much detail as possible to assess the risk of allowing me to work with children . as the caution had absolutley nothing to do with children i sent them an email saying as much( and resigning as a coach). i have 3 kids have played the game for 35 years completed training corses, only ever had any involvment with the police once(i only excepted a caution because i thought i was the easyest thing to do) and now am being assumed to be a risk to children because i will not lay my life bare to them , its none of there bussiness! . if this is the way they treat volenters who have been part of an orginisation for 3 decades then they can get stuffed its their loss . I cant belive this is what the CRB / DBS disclosure is for . Surley they cant think that even the smallest crime against a child would be delt with by a police caution

  • John Name

    What?

  • http://deepchange.wordpress.com/ Alastair McGowan

    Fantastic, a comment even more convoluted than my own one! Well done!

  • mr very unhappy

    lol