Necessary Intrusion or Criminalising the Innocent? An Exploration of Modern Criminal Vetting

DOI10.1350/jcla.2012.76.2.761
Published date01 April 2012
Date01 April 2012
Necessary Intrusion or
Criminalising the Innocent?
An Exploration of Modern
Criminal Vetting
Chris Baldwin*
Abstract This article considers the processes of criminal vetting and out-
lines the legislative framework allowing such disclosures and subsequent
judicial interpretation of that framework. The focus is on disclosure of
non-conviction (so-called ‘soft’) materials on ‘enhanced’ certificates and
subsequent challenges to those disclosures at judicial review. Key cases are
analysed, including R (on the application of X) vChief Constable of West
Midlands Police (2004) and R (on the application of L) (FC) (Appellant) v
Commissioner of Police of the Metropolis (Respondent) (2009). The proportion-
ality test in R (L) is noted and its subsequent application in the recent
decisions of R (on the application of C) vChief Constable of Greater Manchester;
Secretary of State for the Home Department (2011) and R (on the application of
B) vChief Constable of Derbyshire Constabulary (2011) is scrutinised. The
article also highlights interference in Article 8 of the European Conven-
tion on Human Rights (right to privacy) and questions whether inter-
ference can be justified, and whether the present judicial focus on right of
representations in such cases is misplaced.
Keywords Criminal Records Bureau; Vetting; Disclosure; En-
hanced certificates; Privacy
The UK has a long history of vetting potential employees with regard to
criminal convictions. This culminated in the establishment of the Crim-
inal Records Bureau (CRB) in 2002. The CRB has the authority to issue
either ‘standard disclosure certificates’ or ‘enhanced disclosure certifi-
cates’ per Part V of the Police Act 1997. Enhanced certificates allow for
chief police officers, at their discretion, to disclose non-conviction
material as well as ordinary conviction information. This discretion has
been used widely and, among the few commentators focusing on this
issue, such usage has proven extremely controversial.
Judicial interpretation of the legislative power has ranged from the
ordinarily subordinate to the occasionally bellicose. In 2009, the Su-
preme Court passed a landmark judgment in R (on the application of L)
(FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent)1
which created a new test for the disclosure of so-called ‘soft materials’
for those persons whose employment required that an enhanced certifi-
cate be obtained. This test was intended to replace the old test laid down
by the Court of Appeal in R (on the application of X) vChief Constable of the
* Lecturer in Law, University of Sunderland; e-mail: chris.baldwin@sunderland.
ac.uk.
1 [2009] UKSC 3, [2010] AC 410.
140 The Journal of Criminal Law (2012) 76 JCL 140–163
doi:10.1350/jcla.2012.76.2.761
West Midlands Police.2The central tenet of the judgment in R (L) was that
there should be no longer a presumption in favour of disclosure, but
rather a new test founded upon that most pernicious judicial chestnut,
proportionality. In electing to declare that there now existed in all cases
a need to balance the protection of vulnerable people against the rights
of those damaged by enhanced disclosure, the court swept away the R
(X) presumption that information should be disclosed if it might be
true.
It is now two years since the passing of a judgment which some
predicted would prove the high-water mark of vetting.3This is a multi-
faceted area of law which carries much social and legal signicance in
spite of a relatively low level of academic or public scrutiny. This article
will attempt to consolidate and evaluate the judicial interpretation of the
legislative framework of the CRB and disclosure certicates; rst, by
outlining that framework and, indeed, the remit of the CRB itself;
secondly, through an extrapolation of the tests, and their application,
which have governed the disclosure of so-called soft material and,
nally, by examining the subsequent application of the R (L) test in
decided cases to determine whether those predictions made in the
immediate aftermath of R (L) have proven accurate.
Background
It is clear that we must have effective measures for sharing information
about potentially dangerous individuals. However, those measures must be
proportionate and allow for representations to be made before information
is disclosed. Unless the procedures are changed, the careers of many
individuals will be ruined for no substantiated reasons. And the people
who will suffer will be the very children and vulnerable adults that the
Bichard Report4intended to help.5
It has long been accepted, in the UK and many other EU countries,6that
employers have the right to make background checks against pro-
spective and incumbent staff to verify their suitability for employment.7
In England, this right may be traced to Henry Fielding, who in the 1740s
instituted the post of Register Clerk, whose responsibility it was to
record both any crimes reported and the names of those suspected of
involvement and/or convicted. Fieldings register was, in 1749, to form
the basis of the Universal Register Ofce, a labour exchange where
2 [2004] EWCA Civ 1068, [2005] 1 WLR 65.
3 For example, T. Pitt-Payne, EmploymentThe Shadow of the Past (2009) 159
NLJ 1530.
4The Bichard Inquiry Report, HC653 (2004), available at http://www.bichardinquiry.
org.uk/10663/report.pdf, accessed 20 February 2012. This report was the result of a
public inquiry into the circumstances of Ian Huntley nding himself employed in a
position from which he could commit the Soham murders of Holly Wells and
Jessica Chapman.
5 A. Mazzola, Tainted Records Law Society Gazette, 19 August 2010, 6 at 7.
6 N. Loucks, O. Lyner and T. Sullivan, The Employment of People with Criminal
Records in the European Union (1998) European Journal on Criminal Policy and
Research at 195.
7 T. Thomas, Employment Screening and the Criminal Records Bureau (2002) 31
Industrial Law Journal 55.
Modern Criminal Vetting: Necessary Intrusion or Criminalising the Innocent?
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