The disclosure of police-held ‘non-conviction information’ to employers
| Published date | 01 December 2015 |
| Date | 01 December 2015 |
| Author | Daniel Marshall,Terry Thomas |
| DOI | 10.1177/1461355715616989 |
| Subject Matter | Articles |
Article
International Journal of
Police Science & Management
The disclosure of police-held
2015, Vol. 17(4) 237–245
ª The Author(s) 2015
‘non-conviction information’ to employers
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DOI: 10.1177/1461355715616989
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Daniel Marshall
Faculty of Arts, Law & Social Sciences, Anglia Ruskin University, UK
Terry Thomas
Faculty of Health and Social Sciences, Leeds Beckett University, UK
Abstract
The police have been disclosing criminal records and other non-conviction information to employers for the last 30 years
as part of the pre-employment screening of job applicants. This employment has largely consisted of work with children
and vulnerable adults. The Criminal Records Bureau (CRB) took some of this work – the disclosure of criminal records –
off the police in 2002 and its successor, the Disclosure and Barring Service (DBS), has continued to do so since 2012. The
police, however, have always been left with the residual task of deciding what other ‘non-conviction information’ should
be passed to employers. This article seeks to critically examine the disclosure of non-conviction information to employers
by the police. The background and legal and ethical context surrounding this area of police decision-making are
considered, as are the guidance provided to the police, the practicalities of decision-making and the additional
guidance published for the police on similar disclosures; we also consider the court judgements that have been both
supportive and critical of this area of police decision-making.
Keywords
Criminal records, police intelligence, employment screening, rehabilitation, human rights
Submitted 10 Aug 2015, accepted 18 Oct 2015
Introduction
information’. This is information that might be called
police intelligence or ‘soft’ information, in contrast to the
For many years, the police have been responsible for dis-
criminal record, which is considered ‘hard’ information.
closing the criminal record histories of and associated non-
The police decide whether to disclose this ‘soft’ informa-
conviction information on job applicants to employers (see
tion based on what they ‘reasonably believe might be rele-
e.g. Home Office, 1955, 1973). Since 1986, the number
vant’ to the employer who uses it to make the final
of disclosures made has increased considerably because this
selection decision.
vetting moved to include all those who want to work with
Today, the Disclosure and Barring Service (DBS) has
children or vulnerable adults. In 2002, the police were
replaced the CRB and released 8 million disclosures for the
relieved of the task of disclosing criminal records when the
2-year period ending December 2014 (DBS, 2015). Using
Criminal Records Bureau (CRB) came into being and started
Freedom of Information requests, Appleton (2014) reports
issuing Enhanced and Standard Criminal Record Checks; the
‘enhanced’ checks having the additional ‘non-conviction
information’ or ‘police intelligence’ included. Of 4.3 million
enhanced criminal records checks in 2009, approximately
Corresponding author:
25,000 pieces of intelligence were disclosed (Mason, 2011).
Daniel Marshall, Anglia Ruskin University, East Road, Cambridge, CB1
The police have to decide what additional information
1PT, UK.
to release if they hold such other ‘non-conviction
Email: daniel.marshall@anglia.ac.uk
238
International Journal of Police Science & Management 17(4)
that 37% of withdrawn job offers were based on ‘non-
for work with children and vulnerable people was esti-
conviction information’, rather than criminal records.
mated at 665,000 per year, an increase of around 23% on
This article seeks to explore the nature of this disclosure
the previous year (Home Office, 1993: para. 23). The con-
and the way in which the police make these decisions. It
sultation paper formed the basis of a three-year review,
also examines the various judicial reviews that have ques-
which culminated in the White Paper On the Record (Home
tioned police decision-making over the years and the Stat-
Office, 1996).
utory Disclosure Guidance that the Home Office produced
In due course, the White Paper was followed by the
for the police in 2012 and 2015. We would agree with
1997 Police Act, Part V of which took police checks out
Baldwin (2012) that this area:
of the realms of Home Office administrative circulars and
into statutory law. A new body, the CRB, was to take this
. . . is a multi-faceted area of law which carries much social
work off the police and all disclosures were to be made only
and legal significance in spite of a relatively low level of aca-
to registered recipients; a charge would be made for each
demic or public scrutiny.
disclosure. The CRB started work in March 2002.
The CRB was given a direct link to the Police National
Recent authors have sought to rectify this low level of
Computer (PNC) database of criminal records. The police,
scrutiny (see e.g. Grace, 2013, 2014; Larrauri, 2014a, 2014b)
however, were left with the role of deciding on the ‘non-
This article starts with a brief history of police disclo-
conviction information’ to be released alongside criminal
sures of ‘non-conviction information’ to employers since
records. The Police Act 1997 now delineated this informa-
1986 and how we have arrived at today’s Statutory Disclo-
tion as anything that the police thought ‘might be relevant’
sure Guidance.
(ss. 115(7)(a) and (8)(a)).
The Home Office published new guidance in the form of
a circular to the police in 2005 on how best to disclose this
A brief history
‘non-conviction information’; this was in response to the
The 1986 Home Office circular to the police regarding the
CRB starting work in March 2002 and the legal case R
disclosure of criminal records for employment screening
(X) v. Chief Constable of the West Midlands Police
purposes referred to ‘non-conviction information’, which
(2005) (for more on this case see below).
it called ‘related information’. This information was
The circular called for these decisions to be a ‘careful
described as ‘information outside the scope of this circular,
and mature judgement’ because of the effect on the career
which gives cause for serious concern’ (Home Office,
and life of the applicant, as well as the safety of vulnerable
1986: para. 7). There was no further guidance to the police
people. The decision-making had to be able to withstand
on how this information should be decided upon.
scrutiny and should be fully recorded, and with reasons
The House of Commons Home Affairs Committee in
noted as to the decision to disclose, or not disclose. The
1990 looked at growing concerns about the quality stan-
information disclosed had to be credible, clear and capable
dards of all criminal records (House of Commons, 1990)
of being substantiated if challenged; it was not to be
and this led the Home Office to commission a Scrutiny
included simply because it was of a certain type, such as:
Report. This report into all aspects of the national criminal
records system looked again at the disclosure of ‘non-
an acquittal,
conviction information’ to employers and wanted this
an impending prosecution recorded on the PNC,
disclosure to be ‘carefully regulated’; the Home Office rec-
the fact that the applicant is on police bail, or
ommended this be done not by the police or the courts, but
a conviction that is not recorded on the PNC.
by an independent body like the Crown Prosecution Service
(CPS) (Home Office, 1991: para. 159).
The circular emphasised that the inclusion of any acquit-
The government’s response to the Scrutiny Report (con-
tal needed to be considered with the greatest care and, if
tained in its Foreword) made no comment on the disclosure
information about any acquittal was to be included, the
of ‘non-conviction information’, but acknowledged the
force must show why it was considered relevant.
other ‘weaknesses’ identified in the wider system. The
The information had to be reasonably current and rele-
answer was seen in computerisation and a consultation
vant to the purpose for which the disclosure was being
paper ‘in about 12 months’ time’. The CPS would not be
sought and the police needed to have an understanding of
asked to adjudicate on ‘non-conviction information’.
different work situations involving children and vulnerable
In 1993, the consultation paper reviewed the wider pic-
people (see Home Office, 2005 for complete details).
ture of criminal record disclosure for employment vetting
Despite this extended guidance, the police decisions
purposes, in particular, the work burden now being placed
were still challenged in the courts when job applicants
on the police. The total number of disclosures on applicants
thought they were unfair.
Marshall and Thomas
239
Judicial reviews
worked with an assistant to help him carry the furniture
(W v. Chief Constable of Northumbria).
The Police Act 1997 s. 115(7) wording of ‘information that
A similar case in Manchester involved allegations of
might be relevant’ was scrutinised in the case of R (X) v.
sexual activity with girls aged 5–15, but again the man had
Chief Constable of the West Midlands Police (2004). The
not been charged or convicted. In this case, it was argued
High Court decision in this case was that the West Mid-
that the police did not appear to understand that lecturing
lands Police had been wrong to disclose information on a
in welding in a college...
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