You are here

Supreme Court criticises criminal record checks

3 November 2009

Courts and the police are failing to pay sufficient attention to privacy rights in the way they handle enhanced criminal record certificates, the Supreme Court has held.

The court heard that almost 275,000 certificates were issued last year.

Lord Hope said the way the checks currently operate “has all the hallmarks of a rather, rigid, mechanistic system that pays too little attention to the effects of disclosure on the applicant”.

He said that in cases of doubt, chief constables should give applicants the opportunity to make representations before sensitive information is released.

Lord Hope was giving the leading judgment in R (on the application of L) v the Met Police Commissioner [2009] UKSC 3.

He said that Lord Woolf, responsible for what was until now the leading ruling on the use of enhanced certificates in R (on the application of X) v Chief Constable of West Midlands Police [2004] EWCA Civ 1068, had got the balance wrong.

Lord Hope explained that enhanced checks revealed not only minor convictions and cautions, but allegations held on local police records about the applicant’s criminal or other behaviour which had not been tested at trial or led to a conviction.

He ruled that under section 115(7) of the Police Act 1997, which requires chief police officers to provide information for inclusion in enhanced certificates, decisions could be taken in a way compatible with the applicant’s rights under article 8 of the ECHR.

However, he said: “In cases of doubt, especially where it is unclear whether the position for which the applicant is applying really does require the disclosure of sensitive information, where there is room for doubt as to whether an allegation of a sensitive kind could be substantiated or where the information may indicate a state of affairs that is out of date or no longer true, chief constables should offer the applicant an opportunity of making representations before the information is released.”

Lord Hope said the procedure would not have to take place in every case.

“It should only be resorted to where there is room for doubt as to whether there should be disclosure of information that is considered to be relevant,” he said.

“The risks in such cases of causing disproportionate harm to the applicant outweigh the inconvenience to the chief constable.”

The case concerned L, a playground assistant who lost her job at a secondary school after a criminal record check revealed that her 13-year-old son had been put on the child protection register under the heading of neglect.

It was claimed that L had failed to properly supervise her son, who was excluded from school after assaulting a teacher, and to cooperate with social services.

The court heard that the boy was later arrested, and detained in a young offender institution for robbery, while L’s much older daughter was “involved in drugs and prostitution”.

Lord Hope concluded: “The consequences that disclosure will have for her private life are regrettable. But I can see no escape from the conclusion that the risk to the children must, in her case, be held to outweigh the prejudicial effects that disclosure will give rise to.”

Lords Saville, Brown and Neuberger agreed that L’s appeal should be dismissed. Lord Scott also agreed, although he argued that article 8 of the ECHR was not engaged.

John Ford, principal of John Ford Solicitors, which acted for L, commented: “While I am disappointed that my client was unsuccessful in this case, she will be pleased that the point of principle has been established that means that people in her position will have far more protection in the future,”.

“This has been a long battle through the courts and common sense has prevailed. Proper guidance now needs to be provided by central government so that the police stay within the law.”

Categorised in:

Procedures Police & Prisons Vulnerable Clients