CRB Checks: Balancing Human Rights

This week the Court of Appeal has ruled that laws requiring people to disclose all previous convictions to certain employers are incompatible with human rights.

The case centred on an individual known as T. When he applied to study a sports course at university (which involved working with children) he was required to disclose police warnings he received aged 11 over two stolen bicycles. He contended that the system of criminal record checks (commonly known as CRB checks) which requires a person to disclose all convictions and warnings to certain employers, irrespective of the age of the warnings or convictions, was incompatible with his right to a private life under Article 8 of the European Convention on Human Rights (ECHR).

The Court of Appeal agreed. While it accepted that the system is designed to protect employers and the children and vulnerable adults in their care, it held that the need to disclose all convictions and warnings was disproportionate to that aim. The blanket nature of the system was wider than necessary to achieve the purpose of protecting children and vulnerable adults. The court said the fundamental objection to the system was that it does not seek to control the disclosure of information according to whether it is relevant to allowing employers to assess if an individual is suitable to be employed. The court has therefore ruled that the relevant legislation is incompatible with human rights. As expected, the government has said it intends to appeal the decision.

Notes on the law

This case shows a classic issue within human rights law; namely, the need to balance competing rights.

The Rehabilitation of Offenders Act 1974 (and other laws) creates a system which allows an individual to treat certain convictions and warnings as ‘spent’. That is to say after a certain amount of time an individual can treat themselves as having never committed an offence. They do not need to tell most employers about their offending and cannot be refused employment because of it. However, for certain positions, many of which involve working with children and vulnerable adults, the law requires all previous offences and warnings to be declared. It was this part of the system that affected T.

Article 8 of the ECHR provides that we all have a right to a private life. In the case of T the court accepted that CRB checks interfered with this right as the cautions were issued in private. More generally, the court accepted CRB checks can interfere with the right to a private life because it can lead to exclusion from employment, where individuals form relations with others. Article 8 does, however, allow interferences with our private life if it is necessary to achieve certain aims. In other words, interferences with the right to a private life can be justified if they are proportionate to certain aims. One of those aims is the protection of the rights of others. So in the case of T, CRB checks were intended to protect the rights of children and vulnerable adults, which the court accepted. However, the court could not accept that it was necessary to require the disclosure of all previous convictions and warnings. The court said it simply was not necessary to disclose all convictions and warnings when some are so old and minor that they are totally irrelevant. This stepped too far into T’s right to a private life.

The court was required to examine the balance between one person’s right to a private life and the need to protect the rights of others. It decided here that the balance struck by the current law was wrong.

The future of CRB checks

Assuming that the judgment is not reversed on appeal, the law will need to be amended. The court suggests that in the future a filter system can be used to exclude certain convictions and warnings from CRB checks based on the age of the conviction/warning, the age of the individual at the time of the conviction/warning, the severity of the offence etc. The court said it would not be appropriate to allow the current system to continue and require employers to determine if a previous conviction/warning is relevant to an individual’s suitability for employment because often a previous conviction/warning would be a ‘killer blow’ to an individual’s employment prospects. This must surely be correct; the court is quite right to fear that employers would simply choose individuals without previous convictions/warnings.

It will be very interesting to see the outcome of any appeal and how the current system might be changed. What are your thoughts? Should all convictions and warnings continue to need to be disclosed when applying for certain jobs?

The judgement can be read in full here: http://www.bailii.org/ew/cases/EWCA/Civ/2013/25.html

British Death Sentence

It is a rare thing indeed for a British person to receive the death sentence, but today that is exactly what has happened. Lindsay Sandiford, 56, has been found guilty of drug trafficking in Bali, after 4.8kg of cocaine was found in her suitcase lining during a routine inspection. She says she was coerced by gang members threatening to harm one her children into carrying the drugs. Sandiford has been sentenced to death and faces execution by firing squad.

There was surprise at the verdict as the prosecutors had only recommended a 15 year prison sentence. The UK government has condemned the sentence. The judges, however, said that Sandiford did not appear to be concerned about the consequences of her actions, namely damaging Bali’s tourism image and the government’s anti-drugs programme. It is almost certain that Sandiford will appeal the decision.

The Death Penalty in the United Kingdom

The last execution was in 1964 and the death penalty was finally abolished in the United Kingdom for all offences (even during the time of war) in 1998. Furthermore, in 2004, the UK became bound by Protocol 13 to the European Convention on Human Rights (for more on the Convention see this post: http://lawscapeuk.blogspot.co.uk/2013/01/a-new-bill-of-rights.html) which prohibits the death penalty in all circumstances and which prevents us from reintroducing the death penalty so long as we remain a party to the Convention.

That the death penalty is unlawful and will remain so must surely be correct in my view. Despite frequent calls for its reintroduction there are good reasons not to have the death penalty. Firstly, there is always the risk that mistakes will be made in the conviction of an offender. Say, for example, that we convict the wrong individual; there is no opportunity to vindicate them once they have been executed. There have been plenty enough wrongful convictions in the past for us to be concerned about executing the wrong individuals. Secondly, the death penalty simply represents an easy way out of long term punishment. Why should an offender be allowed to escape life in prison? Thirdly, it is not acceptable for the state to kill individuals when it condemns the killing of individuals by its citizens. If killing another if unacceptable it does not become acceptable simply because the state sanctions it; it is barbaric either way.

Arguments in favour of the death penalty are often at their strongest in relation to murder, but Lindsay Sandiford has not even been convicted of murder. She has been convicted of a drug offence, albeit a serious one. I certainly hope that any appeal she makes is successful.

Dappy Guilty of Affray and Common Assault

The N-Dubz rapper Dappy has been found guilty of affray and common assault (assault by beating) in relation to a fight at a petrol station. The 25-year old was convicted by a jury at Guilford Crown Court following an incident on the 28 February 2012. It was reported that he sighed and shook his head when the verdicts were announced.

The court heard that at 3.30am at a petrol station the rapper approached two girls and tried to persuade them to get into a car and attend a recording studio with him. When they refused and ridiculed him the rapper became angry and subsequently spat at another man, David Jenkins, when he stepped in to protect the girls. Following this Jenkins placed the rapper in a headlock and a fight ensued with a number of people.

Dappy faced a further two counts of common assault, having allegedly spat at the two girls but missing them. He was acquitted on these counts.

The case was adjourned for sentencing until the 15^th February so that a pre-sentence report can be prepared. This document will assess what punishments might be suitable for the convicted rapper.

Some notes on the law

Although common assault and affray are offences that are often reported in the media their legal meanings are not entirely clear to the public. So what exactly is common assault? Common assault involves either the offence of assault or battery. Assault is intentional or reckless conduct which causes another to believe that unlawful force will imminently be used against them. Battery is the intentional or reckless unlawful application of force to another. Recklessness is defined in law as foreseeing the possibility of certain outcome as a result of your actions but still going on to take the risk of it. The law tells us that when we charge a person for assault or battery it must be under section 39 of the Criminal Justice Act 1988. It also tells us that when we charge a person for battery we must charge them with ‘assault by beating’.  So in Dappy’s case he was charged with assault by beating, namely battery. He unlawfully applied force to David Jenkins by spitting on him.

Turning now to affray, the essence of this offence is the use or threat of violence by one person against another which would cause a third person at the scene to fear for their personal safety. In addition, a person must intend to use or threaten violence or realise that his conduct may be violent or threaten violence. So the offence focuses on how violent conduct affects those who might observe it. It is a public order offence, charged under section 3 of the Public Order Act 1986.

Jimmy Savile: Declaring Guilt

Today a report authored by the Metropolitan Police and the NSPCC has been released, detailing the years of abuse by Jimmy Savile. The report, ‘Giving Victims a Voice’, documents a pattern of offending that is likely to have spanned 50 years, possible because Savile ‘was hiding in plain sight’. It explains that 450 people came forward with information relating to Savile leading to, currently, 214 formally recorded crimes that were committed at locations including the BBC, hospitals and schools.

What is interesting about the report is its declaration that because the complainants' (who mostly are not known to one another) accounts ‘paint a compelling picture of widespread sexual abuse by a predatory sexual offender’ they are referred to as ‘victims’ and their evidence is not being treated as unproven allegations. Presumably, therefore, their evidence is being treated as proven. Essentially then, the authors of the report seem to be saying that although a criminal prosecution is impossible as the suspect is now deceased, we can nevertheless be sure that he was guilty of a number of crimes. I personally find this conclusion concerning. We only declare a person guilty of a crime following a trial of the evidence, when we are sure that the person is guilty. At such a trial the defendant is represented, evidence is challenged and various safeguards are in place, such as restrictions on the type of evidence which can be used. That is what makes the process of finding somebody guilty fair. As Savile is dead he cannot challenge the evidence against him. We cannot have a trial of the evidence and cannot therefore be sure of his guilt. That is not to say that I believe him to be innocent. It seems to me from all that has been reported that there is a very high probability that Savile was guilty of a number of appalling crimes. But there is a huge difference between declaring something highly probable and declaring something proven. In a democratic society we can only declare criminal conduct proven following a trial of evidence. As this has not been possible in this case I do not believe it is correct to treat the allegations as proven.

This raises the question of how we should deal with criminal allegations against a person who has died. One way of course is, as here, to have an investigation and then a report setting out its findings. But such a report should not declare guilt in the same way that a criminal trial can. The problem with this method is that supporters of the deceased may feel that there has been an injustice to the deceased as there has been no examination of the evidence that is available. An alternative way, therefore, could be to introduce law allowing for a new posthumous trial procedure. Such a procedure could involve the appointment of an advocate to represent the interests of the deceased and then an examination of the evidence. Of course, we could never be sure of guilt as there would often be much evidence that only the deceased could give. But we may be able to say that there is a high probability of guilt. Accordingly, such a procedure could allow us to find a person innocent or make a ‘declaration of probable guilt’ in relation to them. At least in this way we attempt to assess the evidence in the way that we do at a traditional trial and equally balance the interests of both any alleged victims and the deceased and their supporters.

I imagine that the type of procedure described above is unlikely to ever exist. But surely we need an alternative way of dealing with such cases; can it ever really be acceptable to declare criminal allegations proven without a trial? What are your thoughts?

The report is available here: http://www.nspcc.org.uk/news-and-views/our-news/child-protection-news/13-01-11-yewtree-report/yewtree-report-pdf_wdf93652.pdf

Last Place for Olympic Bottle Thrower

The man who threw a bottle on to the track at the start of London Olympics men’s 100m final has today been found guilty of public order offences. Ashley Gill-Webb, 34, of South Milford in North Yorkshire, has been found guilty of intending to cause the finalists harassment, alarm or distress by using threatening, abusive or disorderly behaviour, contrary to Section 4A of the Public Order Act 1986 and also of using threatening, abusive or disorderly behaviour within the hearing and sight of a person who would likely be caused harassment, alarm or distress as a result, contrary to Section 5 of the 1986 Act.

The Judge, sitting at Stratford Magistrates’ Court, found that Mr Gill-Webb, who suffers from bipolar disorder, was acting ‘rationally and wrongly’ at the time he threw the bottle. Gill-Webb has been told that the maximum sentence he could expect to receive would be a community-based penalty. 

A New Bill of Rights?

Recently the Commission on a Bill of Rights produced its report, ‘A UK Bill of Rights? The Choice Before Us’. The Commission, established in March 2011, was tasked to consider whether the Human Rights Act 1998 (HRA), the law that incorporates the European Convention on Human Rights (ECHR) into domestic UK law, should be replaced with a new Bill of Rights (BOR) to better reflect British values. This task was set by the coalition government, in response to David Cameron’s intention to replace the HRA with a new BOR and Nick Clegg’s support for the current HRA.

The Commission’s report, published on the 18^th December 2012, concludes that there is a ‘strong argument’ in favour of a new BOR. Well, partially, at least. Seven of the nine members on the Commission are in favour of a new BOR, but two of the members conclude that the case for change has not been made.

The members of the commission in favour of a new BOR rely, principally, on the lack of ‘ownership’ of the HRA by the public as the reason for replacing it with a new BOR. Essentially, the majority say that because the public seem to regard the HRA as, variously, a ‘European’ import, a criminals charter etc., it is desirable to replace it with a more ‘British’ document, reflecting our own values and traditions. Furthermore, the majority members say that a new BOR, while still protecting the rights covered in the ECHR, would be an opportunity to phrase those rights in different language, reflecting British heritage more accurately. Moreover, some of the members said it would be an opportunity to redefine some of the rights and adjust the balances between conflicting rights.

What then does the Commission exactly envisage? It foresees a new BOR which will still incorporate the rights set out in the ECHR, though in different language and with potentially altered definitions. The BOR would largely maintain many of the mechanisms from the HRA, such as the way in which our courts declare other laws to be incompatible with human rights. Finally, it foresees a new BOR as being ‘owned’ by the public because it will better reflect British traditions and heritage.

So has the case been made for replacing the HRA with a BOR? For me at least, the answer is no. And it is no for three reasons:

Firstly, we do not replace legislation simply because it does not feel owned by the public. If legislation is functioning well, there is little justification in replacing it with all the expense that goes with it. Furthermore, if any BOR was going to incorporate the rights in the ECHR (just as the HRA does) what reason is there to believe that it would be ‘owned’ more by the public? It would contain the same rights. More fundamentally, the reasons for which the HRA is not owned by the public are myths. The HRA (and the ECHR which is brought into UK law by the HRA) is a thoroughly British document founded on British traditions and heritage. Although the HRA/ECHR is often attacked as being in some way related to the European Union (about which there is a lot of ill-feeling given the current economic climate), foisted upon us without our consent, the reality could not be further from this. The HRA/ECHR is in no way related to the European Union. The ECHR is a product of the Council of Europe, an entirely separate body, conceived in 1949. The ECHR was signed in 1950 and entered into force in the UK in 1953, twenty years before the UK joined the European Union. The ECHR was drafted in response to the atrocities of the Holocaust and World War II to protect individuals in the future. Winston Churchill called for the protection of human rights and the ECHR was drafted predominately by British individuals. In almost every way the ECHR is a British document, something we should be proud of. I am quite sure that the public would ‘own’ the HRA and ECHR a lot more if only they realised how British it really is. The solution must surely be, therefore, to educate the public about the HRA and ECHR and show the value of them, even if they sometimes protect an unsavoury minority. That is the price to be paid by any human rights document seeking to avoid abuses of power by the state.

Secondly, there must be a very real concern about the way in which the proposed BOR would operate. The Commission has said that a BOR would be an opportunity to redefine the wording of the rights in the ECHR and, in some cases, alter the definitions of the rights and redefine the balances between conflicting rights. The problem with this is that the UK has an obligation (that it agreed to) to comply with the rights in the ECHR as interpreted by the European Court of Human Rights (again, this is not related to the European Union). Accordingly, if a BOR alters the definition and meaning of the rights in a way not compatible with the view of the European Court, it would simply be open to an individual to complain to the Court who would then direct the UK to act in way compatible with their interpretation. The BOR and its interpretation of rights would simply be sidelined. So long as the UK remains a member of the ECHR (there is currently no suggestion that we shall not) we are not in a position to redefine the rights in the ECHR in a way not compatible with an interpretation by the European Court. A BOR cannot change that.

Thirdly, and finally, if the BOR envisaged will still incorporate the ECHR and largely maintain the mechanisms in the HRA, would it really be that different to the HRA? If it is simply a case of updating and modifying a piece of law that is now approaching fifteen years in operation, why not simply amend it? The HRA was masterfully drafted; it can be amended if necessary.

It will be very interesting to see how the Government responds to the Commission’s report. I suspect it will not make a decision one way or the other, but instead decide to consult on the matter further. For my own part, I hope to see things remain the same for the time being. What are your thoughts? 

The Commission's report can be found here: http://www.justice.gov.uk/about/cbr