“(1) The Secretary of State shall issue an enhanced criminal record certificate to any individual who – (a) makes an application under this section in the prescribed manner and form countersigned by a registered person, … (2) An application under this section must be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked – (a) in the course of considering the applicant’s suitability for a position (whether paid or unpaid) within subsection (3) … (3) A position is within this subsection if it involves regularly caring for, training, supervising or being in sole charge of persons aged under 18.”
““exempted question” means a question in relation to which section 4(2)(a) or (b) of theRehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by an order of the Secretary of State under section 4(4).”
“Subject to the provisions of any order made under subsection (4) below, where a question seeking information with respect to a person’s previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority – (a) the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and (b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question.”
“An enhanced criminal record certificate is a certificate which – (a) gives – (i) the prescribed details of every relevant matter relating to the applicant which is recorded in central records, and (ii) any information provided in accordance with subsection (7), or (b) states that there is no such matter or information.”
“Before issuing an enhanced criminal record certificate the Secretary of State shall request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion – (a) might be relevant for the purpose described in the statement under subsection (2), and (b) ought to be included in the certificate.”
“ … it is useful to note the following significant aspects of the statutory scheme involving ECRCs. (i) The whole process of obtaining an ECRC is initiated by the person to whom the certificate will relate. The certificate is for his purposes to enable him to obtain employment which, at least in practical terms, will not be available to him unless he obtains a certificate. (ii) The certificate will only be seen by the applicant and his prospective employer. (iii) The applicant has the opportunity to persuade the Secretary of State to correct the certificate. (iv) The Chief Constable is under a duty to provide the information referred to in section 115(7). This is subject to the requirement that the information might be relevant and ought to be included in the certificate. What might be relevant and what ought to be included is a matter for the opinion of the Chief Constable. (v) The applicant is in a position to provide additional information if he wishes, whether in conflict with the certificate or not, to the prospective employer and it is the prospective employer who will make the decision as to whether he should or should not be employed.”
“[36] … Having regard to the language of section 115, the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure. [37] This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need.”
“The disclosure, if made, would obviously interfere with his right to a private life … Disclosure of allegations of child sex abuse is on the face of it a substantial interference with a person’s right to a private life: see R v Chief Constable of North Wales Police ex p Thorpe per Buxton J at 416B–C, approved by the Court of Appeal at 429B”
“It is helpful to note that while it is accepted by both parties that the information which is included in the ECRC might offend against article 8(1), it is not suggested that the legislation itself contravenes article 8. No doubt this is because disclosure of the information contained in the certificate would be “in accordance with the law” and “necessary in a democratic society”, in the interests of public safety and for the prevention of crime and for the protection of the rights and freedoms of others. This country must, through its legislature, be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so, without those in their care coming to harm if they are under the age of 18 or vulnerable adults.”
“ … how can the Chief Constable’s decision to disclose be challenged under article 8? As already indicated, the Chief Constable starts off with the advantage that his statutory role is not in conflict with article 8, because the statute meets the requirements of article 8(2). It follows also, that as long as the Chief Constable was entitled to form the opinion that the information disclosed might be relevant, then absent any untoward circumstance which is not present here, it is difficult to see that there can be any reason why the information that “might be relevant”, ought not to be included in the certificate. I accept that it is possible that there could be cases where the information should not be included in the certificate because it is disproportionate to do so; the information might be as to some trifling matter; it may be that the evidence made it so unlikely that the information was correct, that it again would be disproportionate to disclose it. These were not, in my judgment, the situations on the facts before the Chief Constable.”
“The information which was disclosed, was information which a responsible employer in this field would want to know before making a decision as to whether to employ the claimant. The claimant is seeking to prevent that information being available. In my judgment, the making available of that information in accordance with the law, as occurred here, could not be contrary to article 8(2).”
“[46] … Wall J was not required, either on the grounds of fairness or because of article 8(2), to, in effect, form his own opinion as to what might be the relevance of the disclosed information. [47] The statute properly conferred the responsibility of forming an opinion on the Chief Constable and, having formed that opinion perfectly properly that certain information might be relevant, it is not for the courts to interfere.”
“The general view of all the professionals is that [X] is at risk within his family because [L] has very little control of his behaviour and knowledge of his whereabouts for the large part of the day.”
“He goes off site regularly. His attendance is an ongoing issue. He has been involved in offending behaviour ie shoplifting … [X] is constantly being linked with incidents around school. He is bullied and bullies other students.”
“there has been a lot of involvement with [X] and his offending and being reported missing by [L]. It is felt that a lot of the issues stem from his sister [Y], around drugs and prostitution. [X] is a frequent visitor to his sister’s home.”
“[L] refuses to accept that [X’s] behaviour is a concern. [L] targeted [the social worker] as the cause of all her problems … [L] said the root of the problem is the family being harassed by neighbours … [L] feels that she is not being listened to and everyone else is the cause of the problems and she is not to blame.”
“Risks to [X] are still accumulating. [X’s] impulsive behaviour is very dangerous and will get him into serious trouble. His emotional situation is also a huge problem”
“[L], born [date], came to police notice in January 2002 when her son, age 13, was put on the Child Protection Register under the category of neglect. It was alleged that the applicant had failed to exercise the required degree of care and supervision in that her son was constantly engaged in activities including shoplifting, failing to attend school, going missing from home, assaulting a teacher at school and was excluded from school. Additionally, it was alleged that during this period the applicant had refused to co-operate with the social services. Her son was removed from the Child Protection Register in June 2003 – after he had been found guilty of robbery and receiving a custodial sentence.”
“[1] There is a mountain of information contained within the docket, a large proportion of which is rumour, conjecture, and uncorroborated allegations. The only information that I consider to be safe to disclose is that which surrounds the applicants son being subject of inclusion on the Child Protection Register under the category of neglect. Given that she has applied for a position involving regular contact with children, I consider this to be highly relevant; the applicant has consistently displayed a lack of ability to adequately care for and supervise her own child and the registered body should be made aware of her history when considering her employment application. [2] [L] born [date] came to Police notice on 29.1.02 when her son, then aged 13 years , was put on the Child Protection Register under the category of neglect. It was alleged that the applicant failed to exercise the required degree of care and supervision in that her son was constantly engaged in activities including shoplifting, failing to attend school, going missing from home, assaulting a teacher at school and was excluded from school. Additionally, during this period, it was alleged that the applicant refused to work or co-operate with the Social Services. Her son was removed from the Child Protection Register in June 2003 having been sentenced at Court to a custodial period for an offence of robbery.”
“[3] I agree with DCI Gibson – the evidence is factual and relevant. In considering the disclosure we do identify her son by default and that does affect his rights. In this case the fact that the information is in the public domain and that the applicant seeks a post with children, and their rights need to be considered does on balance justify disclosure. [4] Information should be more than speculation, it should have some basis in fact. It should be more likely to be true than not and one would need to consider whether on the balance of probabilities test it was true. Age: HO Circular Para 28 “The older the information the less likely it is to be relevant” (2003). [5] The incident has been admitted or is otherwise considered to be accurate and verifiable. [6] The source can be relied upon. [7] The investigation has concluded and there is evidence to support the allegation. [8] 115(7) of thePolice Act 1997 allows a Chief Officer of Police to disclose information that, in his opinion, might be relevant and ought to be brought to the attention of a registered body. Information might be relevant if a reasonable employer would find it material to a decision regarding employment, where the question of whether the applicant would pose a risk to the vulnerable was appropriate. [9] The information relates to information that shows the applicant may be a risk to the physical, mental or moral welfare of the vulnerable. [10] The incident was not connected with sex, drugs or violence but a lack of care. [11] The incident is of concern and there is a specific reason to believe there is a risk to the vulnerable – lack of care. [12] The HRA requires a balance to be struck between the right to private life and protecting the vulnerable from moral harm, mental or physical abuse. While individuals should not be at risk of being forever hounded, if a person chooses to seek this type of employment then they put themselves forward into public life and by that choice accept that information may be released. The impact of disclosure may result in his not being employed. While it would not be in society’s interest to exclude an application from employment, social outlets, etc. as this may be a moderating factor on behaviour, the welfare of the vulnerable in respect of whom the risk may exist is of paramount importance, as it is their rights that legislation seeks to protect. The decision is one for police and there is no presumption against disclosure, the position is more in favour of disclosure unless there is a good reason for not doing so. (X v WM) [13] Disclosure would cause little disruption to the applicants private life as the information will be known to most people to whom disclosure is made. [14] A failure to disclose would result in the vulnerable being placed in some risk of harm through neglect. [15] If information is such that it passes all other tests then it should be disclosed irrespective of DPA implications. [16] Having considered these points and the information held I consider that disclosure is proportionate, in view of the nature of the information and the applicant’s proposed role and necessary to protect vulnerable members of society.”
“I am satisfied that there is a prima facie case for saying that she fell below the standard of a reasonable headmistress … there is a prima facie case that [G] fell below the standards reasonably to be expected of a headmistress in her position with the danger which clearly existed in this case … there is a prima facie case she may well have done … There is, as I hope I have made it clear, a prima facie case that in assessing that balance [scil, the balance between security on the one hand and restraint on the other] she got it wrong … there is certainly a prima facie case that … she failed to exercise reasonable care.”
“that she was indifferent, showing disregard for life and safety, grossly negligent, the evidence does not begin to establish.”
“[G] is a woman of no convictions. However, we have access to intelligence information relating to [G] having been charged with manslaughter through negligence in January 2002. Whilst in the position of head teacher at a special needs school a pupil wandered off of the premises onto the main road with fatal consequences. The pupil was able to leave the premises due to inadequate security arrangements, which were [G’s] responsibility. At Stafford Crown Court in November 2002, the judge presiding decided that there was no case to answer. We have obtained a copy of the judge’s ruling and from that we have taken the following two quotes: “Nevertheless, I am satisfied that there is a prima facie case for saying that she fell below the standard of a reasonable headmistress”, and “there is as I hope I have made clear, a prima facie case that in assessing that balance she got it wrong. Whether she did or not is not for me to say, but there is certainly a prima facie case that she did, that she failed to exercise reasonable care and that the consequence was a tragic one. But that she was indifferent, showing disregard for life and safety, grossly negligent, the evidence does not begin to establish.”
“[G] is a woman of no convictions. However, we have access to intelligence information relating to [G] having been charged with manslaughter through negligence in January 2002. Whilst in the position of head teacher at a special needs school a pupil wandered off of the premises and onto the main road with fatal consequences. Following a police investigation [G] was charged with the offence of manslaughter. She later appeared at court where, on the direction of the judge, she was found not guilty. My decision to disclose is based upon fact that it is reasonably believed that this information is relevant to the assessment of the person’s suitability to work with children or vulnerable adults and that a reasonable potential employer of the applicant for a particular job or position might find the information to be material to his or her decision as to whether or not to employ that individual having regard to the question of whether that individual would pose a risk to children or vulnerable adults. I consider that the information is both credible and current. I think that it is appropriate to restate that it is for the employer and/or the professional body to decide whether the information herein is or is not relevant to the issue of the applicant’s suitability for the position outlined in your correspondence.”
“In my opinion the records held by the Defendant showed that the claimant has been connected with, and to a material degree culpable for, the failure in supervision or management at [the school] which lead to the death of a vulnerable pupil. I know that [G’s] behaviour was not criminal, but a review of the Judge’s comments made it clear to me that he was not saying she was blameless. On the contrary, he states that, “there is certainly a prima facie case that she … failed to exercise reasonable care and that the consequence was a tragic one.”
“I took the view, following further consultation with officers within the Defendant, that it was possible that any summary of the facts of the case, or any quotation from the judgement, ran the inevitable risk of being inadvertently partial or misleading. Whilst I believed, and believe, that I had tried to present the substance of the records held accurately and fairly, (and certainly I had quoted the judge accurately) on review I and those advising me felt that the complaint made by [G] that the disclosure inaccurately presented the detailed outcome of the case was at least arguable. I did not want even a risk that the disclosure might be inaccurate or misunderstood, and so I decided to remove a substantial part of the original disclosure. As part of the dispute I did reconsider whether to make the disclosure at all. However, I saw no reason to change my earlier decision, and decided to make the revised disclosure on the same grounds as set out above.”
“To “neglect” a child is to omit to act, to fail to provide adequately for its needs; and, in the context ofsection 1 of the Children and Young Persons Act 1933 , its physical needs rather than its spiritual, educational, moral or emotional needs. These are dealt with by other legislation.”
“The case conference has a duty to make an assessment as to abuse and the abuser, if sufficient information is available. Of its nature, the mechanism of the case conference leading to the decision to place names on the register and the decision-making process, is unstructured and informal. It is accepted by Mr Scrivener that it is not a judicial process. It is part of a protection package for a child believed to have been the victim of abuse. Unlike other areas of judicial review, the considerations are not limited to the individual who may have been prejudiced and the tribunal or organisation being criticised. In this field, unusually, there is a third component of enormous importance – the welfare of the child which is the purpose of the entry in the register. In proceedings in which the child is the subject, his or her welfare is paramount. In balancing adequate protection for the child and fairness to an adult, the interest of an adult may have to be placed second to the needs of the child. All concerned in this difficult and delicate area should be allowed to perform their task without looking over their shoulder all the time for the possible intervention of the court.”
“The nature of the information recorded, the machinery by which it has been inserted and the limited purpose for which it is included must be recognised. Having said that, I do not consider such an entry is in any way a finding of fact, even less a finding of guilt, nor should it be seen as such.”
“An ECRC contains information, in addition to that which is recorded in central records, about the person to whom the certificate relates, provided by the Chief Constable. The additional information may concern offences of which the person to whom the ECRC relates is suspected of committing even though his responsibility has not been and cannot be proved (emphasis added).”
“The information must, however, be information which the Chief Constable is of the opinion might be relevant to a position which involves regularly caring for, training, supervising or being in sole charge of persons under 18 or vulnerable persons aged 18 or over. The ECRC is, therefore, a form of protection for the young and/or vulnerable: the additional information contained therein is required so as to avoid unsuitable individuals being employed for looking after such persons.”
“The key purpose of disclosure is not a general “character assessment” of the individual, but to consider the risk or likelihood of an offence being committed against the vulnerable.”
“the issue of relevancy should be considered solely in terms of whether information suggests that the applicant poses a risk of physical or mental abuse to children.”
“But, in the final analysis, the main consideration must be the protection of the vulnerable. Therefore, if the information is cogent and relevant, and indicates a risk, it is appropriate and proportionate that it should be revealed.”
“to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so, without those in their care coming to harm if they are under the age of 18 or vulnerable adults.”
“The ECRC is … a form of protection for the young and/or vulnerable: the additional information contained therein is required so as to avoid unsuitable individuals being employed for looking after such persons”
“the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant.”
“the records held by the Defendant showed that the claimant has been connected with, and to a material degree culpable for, the failure in supervision or management at [the school] which lead to the death of a vulnerable pupil. I know that [G’s] behaviour was not criminal, but a review of the Judge’s comments made it clear to me that he was not saying she was blameless … Whatever word one chooses to describe [G’s] approach to that risk, whether it is “mistake,” (as [G] contends), or error of judgement, or negligence, or some other word, it seemed to me, and it still does seem to me, that these facts might be relevant to an employer, at least where the employment in question involved the custody of children. Moral culpability did not seem to me to be the main issue. The main issue was that a child in her care had died from a risk of which she was aware and which she had, self evidently, not managed successfully.”
“The police were extremely critical of the presentation of the case at court, and a report highlighting our concerns was forwarded to the CPS. The CPS did not (would not) reply to that report in writing but in a subsequent meeting with their representatives, our criticism of counsel was accepted, but it was agreed that it was not possible in the circumstances to take the case further.”