Legal Opinion: Police face legal challenge over criminal records checks

If you have done nothing wrong, then you have nothing to fear. But, asks Robert Verkaik, Law Editor, what if the police could disclose unproven allegations to your employer?
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The Independent Online

John Pinnington is the kind of public-spirited volunteer on whom many communities depend. After a successful career as a technical illustrator in the aeronautical industry, Mr Pinnington decided he wanted to work in the voluntary sector, helping severely autistic young adults in Oxfordshire, where he successfully applied for the post of disability training manager.

His new job gave him a renewed sense of purpose, while at the same time enabling him to make a valuable contribution to society. But that all changed when he found himself the victim of false allegations of sexual misconduct.

The accusations came to light through an interview technique known as facilitated communication, a controversial method of interpretation with autistic children and adults, which the courts have found to be unreliable for supporting criminal charges.

After a long battle to clear his name, Mr Pinnington, who has an autistic stepson, was exonerated by the police as well as an inquiry instigated by his own employers. The then Police Complaints Authority, now the Independent Police Complaints Commission, even criticised the police for the way it had handled the investigation. But that was not the end of it.

Mr Pinnington later found that, after a transfer of project management, he was required to obtain clearance under an enhanced check with the Criminal Records Bureau, and, even though the allegations had been dismissed by the police, they were still listed as additional information which, under a strict interpretation of the law, meant they could be disclosed. As a result, Mr Pinnington lost his job.

Last week he won his case to challenge in the High Court the right of the Chief Constable of Thames Valley Police to disclose such damaging and unfounded allegations. His solicitor, Chris Saltrese, an expert in contested sex offence cases, described the challenge as potentially very important in what he described as a "very draconian" area of law.

"The legislation allows the police almost unfettered discretion on what information may be included in an Enhanced Criminal Record Certificate," says Mr Saltrese. "Unsubstantiated material can be included, even if there is no criminal conviction or charges, and even if there is no evidence that the allegations are true." He adds:

This approach was intended to ring-fence the vulnerable. But its effect could be devastating for the wrongly accused. Is it right that an innocent person's life can be ruined without just cause or right of reply?

The case highlights the disproportionate retention and use of information held by the police across Britain.

In November last year the Information Commissioner ordered four police forces in England and Wales to destroy criminal records of minor offences committed by teenagers who had gone on to lead unblemished adult lives but claimed they were still being punished for their past misdemeanours. In one case on the Police National Computer, Humberside Police had kept details of the theft of a 99p packet of meat in 1984 by a teenager who was fined £15.

Mr Pinnington's case also illustrates a wider concern about the onerous bureaucracy facing many people who wish to give up their free time to the community. On Monday, a report published by the Commission on the Future of Volunteering said that the need for Criminal Record Bureau checks, references and other assurances could be disproportionate in relation to the actual risk and work being carried out may already have discouraged thousands of community-minded individuals from making a greater contribution to society.

"Checks are right where people are working with children and vulnerable people," Baroness Neuberger, the Prime Minister's adviser on volunteering, said in the report. "It is the way it's being interpreted that is causing a problem. Organisations don't want to get into trouble, so they have become risk averse."

r.verkaik@independent.co.uk

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