Police records and disclosure
The content of enhanced disclosures
100. It is mandatory for all newly appointed school
staff to be subject to an enhanced disclosure Criminal Records
Bureau (CRB) check.[161]
Whereas information disclosed under a standard disclosure CRB
check will list convictions, cautions, reprimands and final warnings
and will indicate whether any information on the applicant is
held on lists of people barred from working with children or vulnerable
adults,[162] chief
officers of police are obliged to provide supplementary information
in response to a request for an Enhanced Disclosure, namely "any
other information which a chief police officer considers might
be relevant to the job application in question". This will
be non-conviction or "soft" information which is held
locally in police records and which "is considered by the
police to represent a factual record of previous events that an
employer in the most sensitive type of occupation should be aware
of in making an employment decision affecting the most vulnerable
groups of people".[163]
101. In assessing what information to disclose for
an enhanced disclosure CRB check, chief police officers are guided
by Home Office Circular 5/2005[164]
and by the Quality Assurance Framework, described as "a standardised
approach to processing local intelligence information relating
to a disclosure application held by police force disclosure units".[165]
Mr Gargan, Assistant Chief Constable at Thames Valley Police,
told us that the Quality Assurance Framework included "forms
of words" and model ways of articulating the decision-making
rationale for those who prepare disclosures; and he believed that
it was contributing to "increasing levels of uniformity"
across police forces in handling disclosures.[166]
102. Several submissions expressed concerns about
the disclosure of "soft" information. The "Voice"
union reported that its members had sometimes been unhappy about
the content, with unproven allegations appearing as fact;[167]
and the NUT said that Home Office guidance on such disclosures
should be more robustly applied.[168]
In one case recently debated in the House, it was reported that
the "soft information" disclosed by the police force
contained no fewer than 14 factual errors.[169]
103. An applicant for a post who undergoes a CRB
enhanced disclosure will not know in advance what "soft"
information held on police records is likely to be disclosed.
The NUT reported that its members had quite often not appreciated
what information was on their record, and the union sometimes
advised people thinking of moving from one post to another to
find out first, through a data subject access request, what information
was on their record.[170]
Mr Kaufman, a solicitor who regularly acts on behalf of school
staff subject to an allegation, pointed out that solicitors' files
or court transcripts were not kept indefinitely and that an applicant
would, after perhaps ten years, lose access to information which
might help them prove that an allegation which had appeared on
a CRB enhanced disclosure check had in fact been unfounded.[171]
Terminology
104. As with personnel records, the terminology used
by police officers both in recording the outcome of an investigation
for police records and in wording disclosures of "soft"
information in response to a CRB Enhanced Disclosure check was
criticised. The Association of Teachers and Lecturers told us
that "each local police force records what they consider
to be relevant to the post an individual applies for. There is
no uniformity in the type or manner in which a local police force
records details of an allegation. To ensure uniformity, guidance
should be provided for local police forces on the information
to be included in an enhanced disclosure form".[172]
105. The NASUWT noted an apparent reluctance by police
officers investigating allegations to record as an outcome that
there was "no case to answer" even when the allegation
was fabricated, preferring instead to say that there was "not
enough evidence to proceed" or that "no charges [were]
brought but the matter was referred to the employees to deal with
internally".[173]
We agree that the latter phrases imply that the alleged incident
may have occurred but that there was not enough evidence to prove
it. The guidance prepared
by the Department for practitioners on the distinctions in terminology
for different outcomes of an investigation has value for police
officers and should be either disseminated to police forces as
it stands or incorporated into existing police guidance.
Protecting the subject of the disclosure
106. When we questioned Mr Gargan on how police officers
handled enhanced disclosures, he said that decisions on disclosure
in his force were taken only by chief officers and that it was
the role of those officers to challenge the phrasing of a proposed
disclosure. He carried out that work himself and, in the majority
of cases, he authorised disclosure of additional information.
Five such disclosures had been made in relation to teachers in
the Thames Valley police area in 2009 so far: three related to
violence, one to a matter of public indecency and one to grooming
of a young woman in the workplace.[174]
Mr Gargan maintained that disclosures which strongly implied guilt
were made "only in the most exceptional circumstances"
and were not made "on the back of no evidence". He gave
as examples cases which would have proceeded but which had been
dropped because the victim had died or the witness had emigrated,
or because the case had run out of time.[175]
107. Mr Barnes, National Secretary of FACT (Falsely
Accused Carers and Teachers) pressed for a method of appeal against
information which was included on CRB checks.[176]
Mr Gargan told us that there was already an avenue of appeal through
the Criminal Records Bureau, through which police forces could
be asked to reconsider the "soft" information disclosed.[177]
The Bureau's disputes procedure enables applicants to challenge
a disclosure if he or she believes that the content of the application
(or elements of it) are incorrect.[178]
108. An alternative means of protecting school staff
from the disclosure of unfounded allegations was put to us by
Amanda Brown, giving oral evidence on behalf of the NUT. She suggested
that there might be a role for the Independent Safeguarding Authority
in seeing a disclosure of "soft" information before
it was sent to the applicant, investigating any allegations which
were referred to in the disclosure, and removing any reference
from the disclosure if the Authority was satisfied that the subject
of the disclosure was "safe".[179]
Chris Keates, General Secretary of the NASUWT, appeared to support
this idea when it was raised in evidence.[180]
109. We recommend
that the Independent Safeguarding Authority assess proposed disclosures
of "soft" information relating to people working or
applying to work with children or vulnerable people.
110. The NASUWT argued that guidance was needed for
prospective employers on what weight should be given to "soft"
information supplied in CRB enhanced disclosures.[181]
The union told us that "the climate in schools at the moment
is such that if your enhanced disclosure does not come back completely
clear, people won't take the risk of appointing you. If you are
a teacher who has had an allegation made against you and you have
been exonerated, that information is passed on, and your career
will still be blighted".[182]
111. We note a well-publicised case in which a person
had attempted to challenge at judicial review the disclosure of
allegations contained in "soft" information supplied
to a prospective employer, on the basis that they lacked credibility
and that no action had been taken following police investigation.
In his judgment, Lord Justice Richards dismissed the claim, having
concluded that the allegations had enough substance to make it
reasonable for the chief officer of police making the disclosure
to conclude that they might be true; but he was troubled by the
prospective employer's insistence that employees should have a
"clean" CRB certificate:
"The legislation imposes a relatively low threshold
for disclosure in the certificate in order to enable an employer
to make a properly informed decision. But it is important that
employers understand how low that threshold is and the responsibility
that it places in practice upon them. A properly informed decision
requires consideration not only of the information disclosed in
the certificate but also of any additional information or explanation
that the employee may provide. The operation of a blanket policy
of insisting on a "clean" certificate leaves no room
for taking into account what the employee may have to say."[183]
We agree, and we
question whether an employer should have the right to reject an
applicant or appointee simply on the basis of unproven and quite
possibly unfounded "soft" information supplied by chief
officers for Enhanced Disclosure CRB checks.
The Government
should examine this practice and either justify permitting it
or take steps to prevent it.
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