Employment Screening and Non-Conviction Information

A Human Rights Perspective

Terry Thomas, Kevin Bennett

• Publisher: Palgrave Pivot
• Year: 2019
• ISBN:
  9783030287115
• Topic: Diritto
• Subtopic: Diritti civili in ambito legislativo

This book provides a critical overview of the policy frameworks underpinning the contemporary practices of non-conviction information disclosure during pre-employment 'screening'. It questions how a man can walk free from a criminal court as an innocent person only to have all the court details of his acquittal passed to any potential employer.Despite several million 'enhanced' criminal background checks being performed each year, there has been little discussion of these issues within academic literature. Non-conviction information, also known as 'police intelligence', is a less well-known check provided alongside the criminal record check. This book seeks to define what is meant by non-conviction information and to provide a clear and simple explanation of how this decision making process of police disclosure to employers is made. It also considers the extent to which these practices have been subjected to legal challenges within the UK and explores how public protection is balancedagainst individual rights.

© The Author(s) 2019

T. Thomas, K. BennettEmployment Screening and Non-Conviction Informationhttps://doi.org/10.1007/978-3-030-28711-5_1

Begin Abstract

1. The Disclosure of Criminal Records to Employers

Terry Thomas¹ and Kevin Bennett²

(1)

Leeds Beckett University, Leeds, West Yorkshire, UK

(2)

University of Sunderland, Sunderland, UK

Terry Thomas (Corresponding author)

Kevin Bennett

Email: [email protected]

Abstract

The criminal record disclosure system has grown incrementally over the last thirty years. Existing laws have been altered and amended and other laws are added on in an ad hoc fashion in response to case law and parts of the European Convention on Human Rights. The whole system now arguably needs reviewing and simplifying if anyone is to fully understand it. Starting in Home Office circulars, it is now a tangle of legislation described by The Times newspaper as ‘complicated and arcane’ (The Times Editorial, 31 January 2019). It is on to this Kafkaesque system of criminal record disclosures that the equally difficult-to-follow arrangements have been added to disclose ‘non-conviction information’.

Keywords

Criminal records disclosureCriminal Records BureauDisclosure and Barring ServicePolice Act 1997Protection of Freedoms Act 2012

End Abstract

Introduction

Arrangements for the disclosure of criminal records by the police to employers, to assist in the selection and recruitment of suitable people in certain categories of work have been in existence for many years. In 1986, significant changes to these arrangements would result in an expansion of the number of people every year being subject to criminal record checks. Here, we consider a brief history of these record checks before going on in subsequent chapters to look at the additional disclosure of ‘non-conviction information’.

The Early Days

The formation of the national collection of criminal records through the Habitual Criminals Act 1869 and the Prevention of Crimes Act 1871 and the instigation of the London based national Criminal Record Office (CRO) in 1913 created a national repository of conviction information on known offenders. At this time, criminal records were kept for police purposes and court purposes only.

Throughout the twentieth century, various administrative arrangements started to be put in place to facilitate the passing of criminal record information from the police to certain designated employers or the regulatory bodies of professional groups. The Home Office, for example, published the advice in the 1920s to the police on how this should be done, and two categories of disclosure were identified:

• Notifiable occupations - where the police had knowledge of an arrest or conviction of someone from a given occupation and could pass this on to an employer or professional body of their own volition
• Requested disclosure - where designated bodies, employers or licensing authorities were entitled to request ‘character information’ from the police, including criminal record histories. (Home Office 1925: 14–15)

These disclosures did not take place ‘pre-employment’ but they were precursors to what would become the widespread use of criminal records disclosed to employers at the point of recruitment, to ensure unsuitable people did not get certain designated employment.

Positive Vetting was introduced in 1952 for senior civil servants dealing with highly classified information (Hennessy and Brownfield 1982). Positive Vetting involved a criminal record check but also involved more rigorous interviews and references for applicants; this arrangement was kept in place subject to only minor revisions until 1990. A change in direction was then made to improve and tighten Positive Vetting security arrangements at these levels (Hansard House of Commons Debates 24 July 1990 cols. 159-61 w; Linn 1990; for current arrangements, see United Kingdom Security Vetting available at https://​www.​gov.​uk/​guidance/​security-vetting-and-clearance. Accessed 18 December 2018).

A working party of Chief Officers of Police in 1954 had recognised that using police-held information for the purposes of vetting people for certain employment was becoming an acceptable use of criminal records. The working party identified two principles which it was thought should guide such disclosures:

1. i)
   that police information should not be used except for the purposes for which it was acquired, and therefore it should not be disclosed to persons in authority, however responsible, other than those concerned with police functions, unless the consideration of public interest was sufficiently weighty to justify departure from the general rule; and
2. ii)
   that a person who had served his sentence or otherwise paid the penalty for his crime should not, by official action, be placed in the position where he found it impossible to rehabilitate himself and build a new and honest life. (cited in Home Office 1991: para. 111; see also Home Office 1993a: para. 7)

It is this balance between the public interest including, public protection, and the rehabilitation of the former offender that continues to underpin many of today’s arguments about vetting.

The Home Office followed up the working party with circular guidance on how convictions were to be notified to the Home Office and Ministry of Education ‘to ensure that effective action is taken to protect children from depraved persons’ (Home Office 1954); local authority Children’s Departments at this time fell under the auspices of the Home Office. Again these were not pre-employment checks but they do illustrate the growing move of criminal records into the employment sector. Records were to be notified on:

1. (a)
   a teacher in any type of school;
2. (b)
   a person employed in the care of children (including the resident proprietor of a private school), in a residential school, remand home, approved school, children’s home, approved probation hostel, or approved probation home;
3. (c)
   a youth leader;
4. (d)
   a minister of any religious denomination. (ibid.)

Various other circulars covered the arrangements for disclosure to, for example, those appointing police officers to the armed services and to senior positions in the post office (Home Office 1955: Appendix para. 6) and laws were passed covering dealers in securities (Prevention of Fraud (Investments Act 1958 s5) and workers in casinos (Gaming Act 1968 Schedule 5, para. 3). The approval of foster parents under the Boarding Out of Children Regulations 1955 No. 1377 Regulation 17(1)(b) required local authorities to ensure no applicant had ‘been convicted of any offence which would render it undesirable that the child should associate with him’; similar disqualifications were contained in the Nurseries and Childminders Regulation Act 1948, the Child Care Act 1980, Foster Children Act 1980, Children’s Homes Act 1982 and the Childminders Regulation 1982. All these laws were later consolidated in The Disqualification for Caring for Children Regulations 1991 No. 2094 (as amended). Another circular advised the police to report convictions of lower-level civil servants (Home Office 1969).

In the 1970s, it was already being noticed that this ad hoc growth of disclosures based on circulars was leading to a varied and sometimes confused system of criminal record disclosure. Even though the numbers of people involved were not as large as they would later become, the Home Office and the Association of Chief Police Officers (ACPO) decided to review the position again. In an announcement to the House of Commons, the then Home Secretary, Robert Carr, said their review report, entitled Police Reports of Convictions,¹ started from the position that:

The supply of police information will continue to be governed by the general principle that no information is given to anyone, however responsible, unless there are weighty considerations of public interest which justify departure from the general rule. (Hansard House of Commons Debates 14 June 1973 col. 1681)

Carr’s statement was mostly about convictions taking place that involved practising doctors, nurses, and persons caring for children. Civil servants, barristers, magistrates, and solicitors were also identified as people whose criminality coming to light should be notified to their employer or regulatory body. Nothing was said about vetting these applicants by reference to their criminal records at the point at which they would be joining their respective professions. The review had also come up with three general ground rules for all vetting that it was for:

• the protection for vulnerable members of society;
• the need to ensure probity in the administration of justice; and
• national security

For Carr’s full statement, see Hansard House of Commons Debates 14 June 1973 col. 1680-2 and Home Office 1973.

The Rehabilitation of Offenders Act 1974

A parallel theme arising at this time was the perceived need to assist people with a criminal record to rehabilitate themselves back into mainstream society and in particular back into employment. These ideas were pursued jointly by the campaign groups the Howard League for Penal Reform, Justice and NACRO, and set out in a report from a committee chaired by Lord Gardiner. The argument was made that old criminal records could be removed from a person’s individual record if they were not serious and the person had not re-offended for a given time period (Gardiner Report 1972).

The UK form of ‘expungement’ of criminal records was to be carried out by means of its 1974 Rehabilitation of Offenders Act and the idea of the ‘spent’ conviction. The record is not literally expunged but the person with the criminal record history may, after a given time period without further offending, regard his ...

Table of contents

• Cover
• Front Matter
• 1. The Disclosure of Criminal Records to Employers
• 2. The Nature of ‘Non-conviction Information’
• 3. The Police Disclosure of Non-conviction Information to Employers (1986–2010)
• 4. The Police Disclosure of Non-conviction Information to Employers (2010–to the Present Day)
• 5. Making the Decision to Disclose ‘Non-conviction Information’
• 6. Human Rights
• 7. Conclusions
• Back Matter