‘Too Well-Travelled’, Not Well-Formed? The Reform of ‘Criminality Information Sharing’ in the UK

Date01 March 2013
Published date01 March 2013
Senior Lecturer in Law, University of Derby
The UK Supreme Court will eventually have to pass judgment
on the compliance of the legal and policy framework for
‘criminality information sharing’ with the stipulations of
Article 8 of the European Convention on Human Rights, and
perhaps in relation to more than one area of practice within
public protection work. Parliament should recognise that there
is a groundswell of judicial (and academic) opinion which
suggests that, if the current legal framework regulating the
sharing of information for the purposes of public protection is
lawful, even in the face of criticism from the European Court
of Human Rights, then an intolerable level of uncertainty as to
the issue of that legality has now been reached.
This paper addresses the root causes of this legal uncer-
tainty, and argues for statutory reform to revisit even recent
tinkering with the law in this area. In an overview of both a
body of common law, in the form of a series of key decisions
from the courts, as well as the tensions between two tracts of
legislation, promoting public protection and human rights
values occasionally at odds with one another, this piece exam-
ines the crucial issue of the retention of criminality information
and the idea of individual (offender) consultation over its use
in public protection work.
Keywords: Information, criminality, public protection, law,
human rights, policy, judicial review
Introduction: The Issue of Stigmatisation
The Court of Appeal has recently scrutinised, and criticised, the
manner in which the criminal justice system can ‘silo’ informa-
tion about individuals and their past bad behaviour – convictions,
cautions, prosecutions and arrests, etc. – and how some of this
information is shared outside the criminal justice system,
e.g. with potential employers, even when that information is
relatively ‘historic’ or ‘trivial’ in terms of its currency or
The Police Journal, Volume 86 (2013) 29
DOI: 10.1350/pojo.2013.86.1.607
The Supreme Court will perhaps offer up another indictment
of the way that the aims of the Rehabilitation of Offenders Act
1974 is frustrated in certain employment, or public protection,
contexts. Lord Dyson, Master of the Rolls, has gone so far as to
note (extra-judicially) that the government needs to pull its
nger out and introduce legislation to address the way the
criminal justice system does nothing to address long-term,
inappropriate stigmatisation of some individuals.2But how have
we reached such a controversial position from the courts?
This paper is an overview of the way that the law relating to
criminality information sharing (CIS) for public protection
purposes has developed in a piecemeal fashion. It is also a call
for systemic reform of the law in this arena of public responsibil-
ity. This is because unacceptable stigmatisation can result for
some individuals from the permanency of indenitely retained
criminality information which is in reality only quasi-
criminal, such as the details of allegations of criminality, as well
as other peripheral categories.
Criminality information sharing in England and Wales is a
conicted issue in need of a more certain and transparent legal
framework or landscape (Thomas & Walport, 2008). The
competing interests are those of individual personal privacy (and
corresponding freedom from subjective privacy harms) (Calo,
2011) and the wider issues of public protection.3It has been
acknowledged in sociological research that individuals try to
reduce their own levels of stigmatisation through deliberate steps
(Goffman, 1968).
The Context of Criminality Information Sharing (CIS)
Across Institutions in England and Wales
As well as the disclosure of criminal convictions and other
police intelligence stigmatising offenders in the employment
context, personal privacy issues arise from the processes of
personal information sharing across the criminal justice system
in England and Wales, which can involve information being
shared in prosecutions, for example where personal information
is used as evidence in criminal trials, potentially as items of
hearsay evidence4and bad character evidence.5Both hearsay
evidence and bad character evidence in criminal trials are
regulated by a codied statutory framework in the form of
provisions of the Criminal Justice Act 2003.6This framework
has seen recent judicial approval, while in comparison the
framework for criminality information sharing has been much
criticised as unsubtle.7
30 The Police Journal, Volume 86 (2013)

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