The recent decision of the Supreme Court in AR v CC of Greater Manchester Police is a source of little comfort to those who, having successfully contested criminal allegations, then receive notice of the fact that the police are considering disclosing the mere fact of the allegations to the Disclosure & Barring Service (‘DBS’) for inclusion in any Enhanced Criminal Records Check (‘ECRC’), or that the DBS are considering placing that person on a Barred List, preventing them from working with certain vulnerable groups.
The purpose of an ECRC is to provide information that might be relevant for the purposes of employment or licences, often where the person in question will come into contact with children or other vulnerable groups. The measures were put in place in response to the high profile case of Ian Huntley who, despite having been the subject of a series of allegations of serious sexual offending (including against children), was given a job as a caretaker by the unwitting Soham Village College; it was here that he met the two children whom he went on to murder. Few would argue that the creation of a body to prevent the recurrence of such a case was anything other than a laudable objective, but the balance to be struck between the interference with an individual’s right to privacy and the most effective protection of the public raises thorny questions of both principle and practice.
In the course of his judgment in AR, Lord Carnwath opined on the desirability of clear guidance for those considering the information provided by an ECRC – what weight, for example, should be placed by a prospective employer on a single acquittal? His remarks are certainly worthy of discussion, but may be optimistic in the extreme. The chances that anyone in a position of safeguarding a vulnerable group would approach such information with anything but a very high degree of risk aversion are, in reality, vanishingly small.
What then, if anything, is to be done?
Whilst the case of AR makes clear that it is not necessary for the police to make the same kind of assessment of the evidence that a jury is expected to, this is not the end of the matter. One of the issues for anyone who has received a notice relating to unproven allegations is whether the DBS has all of the relevant information. Most people in this position are able to point out what is already on the public record – that they have been cleared of any criminal wrongdoing. But, in order to displace the somewhat mechanistic assumption that the previous making of an allegation (in particular an allegation of sexual misconduct) indicates that an individual should be treated with caution, the notified person will want to ensure that the DBS have all the relevant information. A response to a Minded To Bar notice from the DBS can include not only written argument about the allegations but all information relating to the respondent, irrespective of whether it would have been admissible evidence in a criminal trial. If the DBS have nothing but the information provided by an overstretched and beleaguered police force (information that may not be entirely accurate, fair or up to date), then they are unlikely to have the whole picture. A Minded To Bar notice provides an opportunity to enable the DBS to make a decision more likely to reflect all the facts.
Recent negative publicity surrounding a decision by the Metropolitan police in the last half of 2016 to exclude unproven allegations from the information available to prospective employers (so that they could only access records of cautions, convictions, warnings and reprimands) has involved suggestions that the integrity of up to 20,000 DBS certificates has been compromised. Whether the attention on this issue creates an impetus to visibly ‘toughen up’ on the processing of certificates remains to be seen, but it is crucial that those acquitted of criminal allegations who subsequently receive Minded To Bar notices consider all their options, rather than regarding their inclusion on a barred list as a fait accompli.
Sarah Vine is a leading junior who specialises in dealing with allegations of serious sexual offending.