Prejudicial information about job applicants, including previous allegations, can be lawfully included in an Enhanced Criminal Record Certificate (ECRC) even when there has been no criminal conviction
Two cases this year have looked at the need to balance respect for an individual’s human rights, specifically under Article 8 of the European Convention on Human Rights, with protection of vulnerable people from abuse or exploitation.
Article 8 of the Human Rights Convention protects a person’s right to a private, family and home life. However, the State can interfere with those rights in order to protect the safety of others, provided that interference is in accordance with the law and necessary in a democratic society. As the courts have previously observed, a person’s exclusion from a large sector of the job market is likely to have a significant effect on their private life in terms of career satisfaction, development of personal relationships, and the ability to earn a living.
Both this year’s cases arose because anyone applying for certain kinds of jobs or voluntary positions, particularly those working with children or in healthcare, is required to apply for an Enhanced Criminal Records Certificate (an ECRC).
Broadly, an ECRC shows any current, spent and unspent convictions, cautions, reprimands and final warnings. A conviction is “spent” under the Rehabilitation of Offenders Act after a specified amount of time has passed. Crucially, an ECRC may also include any soft information held on file by local police or others which is considered relevant to the role. This could include allegations made against that individual, whether or not they were tested in court and even when the individual was found not guilty. It is for the police to decide what additional information to disclose but they must follow a proper decision making process.
This summer in the case of R (AR) v Chief Constable of Greater Manchester the Supreme Court considered a police decision to disclose summary information in an ECRC about the fact that a man had been charged with rape and acquitted. He had applied for a job as a lecturer in 2011 but at the time of the allegation two years earlier had been working as a taxi driver and wished to work as a taxi driver again. Both roles required him to apply for an ECRC. The man said the information disclosed by the police was so prejudicial it would prevent him from being employed in either role. The Supreme Court had to consider whether this was a proportionate interference with his Article 8 rights.
The Supreme Court ruled that it was not necessary for the police to have consulted him about disclosing the rape allegation, or to have conducted a detailed analysis of the evidence given at the criminal trial. The police’s function was to identify and disclose relevant information. The chief constable had taken the view that the information was not lacking in substance, and that the allegations might be true. The police had properly weighed that information in the Article 8 balance. The information was a matter of public record, concerned a serious alleged offence and related to recent events.
Subsequently, in September, in R (on the application of E) v Commissioner of Police of the Metropolis a man applied to the Court for a declaration that disclosures made on an ECRC to his (by then former) employer and his son’s primary school were a disproportionate interference with his Article 8 rights. Allegations of sexual assault had been made against him in 2014 by an 18 year old baby sitter. He was tried on two counts of sexual assault, and acquitted in 2016. He subsequently applied to work as a security officer, and separately also as a school volunteer so he could accompany his own child on a school trip. The police consulted him about the wording to be included in the ECRC but he failed to persuade the police not to disclose the information about the sexual assault allegations. The Court decided that the police’s decision to disclose the sexual assault allegations had been made properly, was not irrational, and was not disproportionate.
These may seem harsh outcomes for the individuals concerned. The decisions need to be seen in the context of previous tragic cases such as those of the 2002 murder of two schoolgirls in Soham by Ian Huntley. Social services in Grimsby had previously looked into 4 separate allegations that he had sex with underage girls, and an allegation of an indecent assault on a 10 year old. In every case bar one the police were also involved. There had also been 3 allegations of the rape of women, and a charge of burglary. Despite all of this background, Huntley had no convictions, although a judge had ordered that the burglary charge should be placed on the police national computer. Huntley subsequently obtained a job as a school caretaker. Vetting procedures were widened following this case and subsequently strengthened and streamlined in 2012.
Parliament and the Courts have decided that disclosure is justified to protect vulnerable people, even though this encroaches on the Article 8 rights of another group (job applicants and volunteers), provided that an appropriate balance is struck between the interests of the two groups. It is, after all, up to employers to decide, once they have seen an ECRC, whether the information in that document is relevant, and if so, whether it justifies refusing to employ a particular individual. However, in our experience most potential employers are likely to adopt a risk averse approach. As Lord Neuberger said in a Supreme Court judgment in 2009 “an adverse ECRC will often effectively shut off forever all employment opportunities for the applicant in a number of different fields”.