Law: Haunted by the past

A new White Paper aims to balance the interests of vulnerable groups with ex-offenders. By Alison Clarke
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The Independent Online
When Mrs Y applied for a job as a social worker with the local authority, she was aware that her prospective employer would check up on her criminal record. What she did not realise was that a malicious allegation, made by her ex-husband five years previously during an acrimonious divorce, would still be held on police files. Although there was no evidence and she was never prosecuted, Mrs Y did not get the job in case she had abused her children.

That, says Liberty, the human rights organisation, in its response to a recent Government White Paper, is why there need to be safeguards in the system of access to criminal records by employers. Liberty's director, John Wadham, agrees that people working with children should be subject to police checks, but insists that "suspicion, tittle-tattle and rumour should never be the basis for refusing employment".

Most criminal record checks carried out by the police are on people working with children; with several hundred thousand additional checks each year on groups such as taxi-drivers and managers of residential homes. Although in the past employers have asked for such checks to be extended to other groups, this has never been done.

Because criminal record checks are only available for a limited category of workers, employers have got round the system by requiring applicants to obtain a print-out of their criminal record, under the subject access rights of the Data Protection Act. The problem is that this throws up both spent and unspent convictions, in clear violation of the safeguards set up under the Rehabilitation of Offenders Act, 1974 (ROA).

"And that," says Roger Lyons, general secretary of the white collar union MSF, "presents a problem for a member who may have transgressed in the past, but whose conviction is now spent. Unless the job is exempted under the Act, the employer has no right to that information."

Under the ROA, some convictions can be ignored after a defined period. But there are a number of exceptions requiring ex-offenders to declare spent convictions if asked to do so. These include jobs working with children under 18 or other vulnerable groups; jobs involving national security; any office dealing with the administration of justice; and certain professions such as lawyers, doctors, dentists, nurses and accountants.

Part of the confusion surrounding the current system is that some exceptions under the Act - solicitors and doctors, for instance - are not subject to checking by the police; whereas some groups subject to checking by the police, such as taxi and minicab drivers, are not exceptions; ie, they do not have to declare spent convictions.

A Home Office spokeswoman says: "We thought we needed a better system that was less complicated for individuals and employees, but with more safeguards."

Under the White Paper proposals, a Criminal Records Agency is to be set up to handle all pre-employment checks. Three new levels of checks will be introduced and the current police checks will be rationalised with the exceptions under the Act. A Code of Practice will be introduced for employers, although it is not clear how this will be enforced.

The new Criminal Conviction Certificate (CCC) will be issued only to individuals on payment of a fee and although it is not mandatory, there is nothing to stop employers from obliging prospective workers to produce one. Only details of unspent convictions will be disclosed.

The full criminal record check is aimed at all groups that are exceptions under the ROA and will give details of spent and unspent convictions, as well as cautions. The fee will be the same as for a CCC.

The enhanced criminal record check only applies to groups working with the under-18s and those applying for betting and lottery licences. It will disclose details of all convictions, cautions and non-conviction information held on local police force records, such as that held on Mrs Y.

According to the Confederation of British Industry, the proposals will help employers get information about work applicants which "in many cases ... will be entirely legitimate". But only where this has some relevance "to their suitability for the job".

But, says Nacro, experience proves otherwise. As the body that represents the interests of ex-offenders, it has found employers are loath to employ someone with a conviction, no matter how old or irrelevant.

The problem is that although the ROA makes it unlawful for an employer to discriminate against a job applicant with a spent conviction, the ex- offender has no way of enforcing this right. Nor does the White Paper address the issue, although the draft Code of Practice makes reference to it.

In any event, says Mervyn Barrett of Nacro, employers rely far too heavily on police checks. "A sex offender with a clean record will not be caught. But if employers go through applications carefully enough, take up references and ask the right questions at interview, they can protect themselves quite well."

At the heart of the debate lies the need to safeguard young children and other vulnerable groups in society, against the rights of ex-offenders to leave their past behind. The question is whether the proposals in the White Paper, once enacted, will go some way to easing that tension. For those in Mrs Y's position, the answer is that the door to local authority employment will remain firmly closed.

'On the Record' - the Government's Proposals for Access to Criminal Records for Employment and Related Purposes in England and Wales.

The author is legal officer with MSF.