'How reliable is the evidence that they had done what was alleged?'
1. Ian Huntley was convicted of molesting and killing two schoolgirls. Despite having previously been arrested and questioned over previous allegations of abuse he was able to get a job as a School Caretaker because his criminal records certificate could only then disclose current Cautions and Convictions and not allegations of wrongdoing.
2. After an inquiry into this problem the Enhanced CRB (now DBS) Certificate system was brought in allowing disclosure of risks not proven by means of a Caution or Conviction including unproven allegations, mental health issues and occasionally the risk that the conviction of a partner or close relative made the job applicant a risk.
3. I am today only dealing with the question of the disclosure of allegations of criminality by the applicant and only for Certificates relating to paid or voluntary jobs in England and Wales.
4. When this system was started it was indicated that because of the risk to children or vulnerable adults that the test was only the civil standard – the balance of probabilities and not the criminal standard. The Police decided whether or not to make disclosure and exactly what to put on and the certificate was issued to the prospective employer, prejudicing if not destroying the prospect of getting that job and when any appeal was directly to the Police who had decided to make the disclosure.
5. It was with this background that I was instructed by an old client A, who was unable to teach because of such an allegation of having indecently assaulted his former step-daughter whilst still married to her mother. A had no previous arrests let alone convictions and I had only acted for him in buying a house and he told me his only prior “crime” was getting a parking ticket.
6. The complainant was a very troubled adolescent when he married her mother possibly due to her previous difficult marriage and divorce. No complaint was made during his marriage, when she became 18 and for a few years after his own divorce from her mother. He was questioned by GMP, denied everything in detail and No Further Action (NFA) was taken. A couple of years later she complained again about the same matter, he again denied it and again the outcome was NFA.
7. A couple of years later an application for an Enhanced DBS resulted in GMP disclosing this allegation in full so he lost any opportunity for a job in teaching . At that time we were able to call the officer at GMP who made the decision and pointed out all the above but also that as an adult the complainant in a few years had been convicted twice for fraud, was therefore not credible at all and with no independent evidence this was clearly a wrong decision. I was told that people who are abused often commit crimes so they believed her. I replied that there was no evidence she had ever been abused and that just because she committed crimes did not mean that she had ever been abused by A or anyone else! They refused and told me if I didn’t like it to take them to Court. My client had no savings or job so I was able to get legal aid and succeeded on a Judicial Review in the High Court. GMP appealed backed up by the government but thankfully we won again in the Court of Appeal.
8. A few years later the Government established the Home Office Independent Monitor System as an Ombudsman to whom to appeal if the Police insisted upon disclosure and who, in our experience, has proven impartial and objective. Not perfect or always agreeing with us but a vast improvement upon appealing to the police against their own decisions.
9. The second major improvement to the system came with the Supreme Court decision in L and the Metropolitan Police 2009 SC3 where they gave guidelines which all police should follow but unfortunately don’t always do so, namely:
Is the risk relevant to the job applied for. If not it should not be disclosed. It could be argued that a paedophile was no risk in an old age home or a groper of old women no risk in a nursery and in one case that a viewer of bestiality should not be barred from working with children. If that first low hurdle is passed the following tests are applied to see whether overall the applicant is now on balance a risk.
How serious was the allegation.
How reliable is the evidence that they had done what was alleged.
How long ago was the allegation i.e. that they had kept out of police notice for a long time.
That they are given an opportunity to dispute the alleged disclosure so that now if the Police want to make disclosure they should write to the applicant indicating what they propose to disclose and giving them 14 days to object and with employer unaware of the letter being issued to give applicant an opportunity to object before disclosure. This hasn’t stopped GMP and NCA ignoring this guideline but, thankfully, in both cases we were able to win our appeals. The appeal system has 3 stages ending with the Monitor and will not be considered in this overview.
The effect of disclosure on the applicant. In practice if there is evidence of a current risk this is rarely a factor.
Like human rights arguments the Police, Monitor and, if necessary, High Court need to balance these considerations and this was clarified in another (anonymous) client’s cases re B. He was arrested but not convicted of indecently assaulting a teenage girl on a yacht by a male carer even though he had no record and the alleged incident allegedly took place only a few feet from where her teenage brother allegedly slept through it! The police disclosed this and on appeal the Monitor concluded that just about on balance the Monitor believed that B had done it but because there was no other similar allegation at all either before or in the 13 years since this allegation that any risk was now minimal and did not need disclosing.
10. If you are charged and found not guilty the Police can still make enhanced disclosure often arguing that CPS clearly felt they had strong evidence or they would not have taken you to court. What helps you appeal is that the Police/CPS had disclosed all the evidence against you and you were able to prepare a defence and succeed. However, this does not mean you are proven innocent, but only that you have shown a reasonable doubt. The Police can argue that this is still provable on balance, so we have to build on the defence case to prove the complainant is not reliable.
In one case of alleged indecent exposure, we attended on site and took photos from every position indicated by the witnesses to show that it was physically impossible to see what they alleged from where they said they had seen anything and until they got within a few feet. This persuaded the Police that the witnesses had lied or certainly been mistaken. Defendant solicitors’ notes and in Crown Court Cases Judges Summing Ups etc. can all be useful in building up your case.
11. Where there is more difficulty is in building a defence when the Police NFA (No Further Action) an allegation before charge and so the suspect does not get the statements of the complainant or witnesses and when the Police refuse to disclose this, arguing it is confidential under the Data Protection Act, so that you can’t find weaknesses in the complainant’s evidence. There may be ways of building up a picture, e.g. what questions was suspect asked, was there an employers’ disciplinary hearing, was Lado ( Social Services ) involved, what witnesses of fact or character can suspect provide, did police check client’s phone /computer, etc.
In one case, client D was alleged to have dragged a child with SEN along the floor by his hand. The Lado disclosure showed that witness 2 only said she heard witness 1 say she had seen it, i.e. complete hearsay. Witness 1 said she was at the far side of a long room and saw D holding up this child by his hand, but that the intervening door was only open a bit, so we were able to prove that witness 1 could not possibly see the child being dragged along the floor. The police accepted that she had only been holding him when he slumped to stop him falling to the floor - which he did if upset.
In one case, a client E. was arrested but not charged with drugging and raping a woman. Both were voluntarily and consensually under the influence of drink and drugs so my client could not recall detail, and his PACE (Police and Criminal Evidence Act) interview was a mish-mash of snapshots he could remember. Police records indicated they did leave his home, get a taxi, stop at a garage to get cash before going to her 24/7 dealer to get some more cocaine. The taxi driver indicated she was drunk but competent, and my client alleged he was so drunk that he was unable to get it up to rape her (despite her valiant oral efforts). The allegation was disclosed before we were instructed and in reply to our subject access they refused to provide her statement, but we appealed to the Monitor on 10 discrepancies.
We argued that she needed to justify being out all night and asked Monitor to request her records and won on 11 points – not only every point we made but also because the police disclosed to the Monitor a photo our client had forgotten. He had been asked to take it on her phone, showing her dancing in his home in just her knickers when she was supposedly drugged unconscious and being raped. We shouldn’t have to wait for the Monitor to requisition records at the end of a case.
12. If an Enhanced DBS is made this can trigger DBS Barring to start a review as to whether to bar the suspect from working with children or vulnerable adults, and if they have a professional regulator they can start a review into sanctioning the suspect. They could, therefore, be attacked on three sides at once, so when a person is NFA’d or found not guilty it is not a case of them being found innocent and moving on with their lives. In such serious allegations I advise clients to get a copy of their interview tapes and solicitors notes. Likewise, suspects should personally retain solicitor’s trial files if found not guilty just in case the allegation comes up in future and before solicitors have destroyed their file.
13. Proposed changes for the future:
That the Data Protection Act 2018 is amended so that if the Police seek discretionary enhanced disclosure that they must then on any subject access request disclose the same evidence as they would have to disclose had they charged the suspect.
That when the Police decide upon an NFA they should not just say there was insufficient evidence to merit charging the suspect, but briefly why it is insufficient, whether they still think that on balance the suspect is guilty, why or why not, and this summary should also be disclosed in full if they seek enhanced disclosure. This would save the Police disclosing matters unnecessarily if there is an unreliable witness, but also give a suspect a heads up as to the reason for disclosure to assist them rebutting that explanation if they can.
The Police are used to proving cases beyond a reasonable doubt but they are not adept at proving matters on a civil standard, so being required to summarise this helps them, the suspect and legal reps clarify the issues in dispute more quickly. This would help fairly resolve any dispute on whether or not to disclose such allegations.
14. This does not directly assist those seeking to appeal a wrongful conviction, which is another issue but may give a few ideas to point them in the right direction.
15. Clients who have suffered a mental health problem may equally be affected, and that also needs a further separate review, but the main points are how ill were they when coming to police attention and what risk if any they are today.
16. There is only one court case clarifying the issue of disclosing a relative’s or spouse’s conviction as a risk by the applicant for the DBS certificate, and QAF advice/guidance for disclosure needs expanding to assist individuals/Police and legal reps assess this risk. This was done for Mental Health issues and seems to have clarified matters. I did raise this need with NPCC but no one has acted on it.
By David Wacks
David Wacks practised as a Solicitor with his firms dealing with both civil and criminal work but set up CRB Problems Ltd in 2012 before retiring from his legal practice. He now advises only as a non-practising solicitor, but is happy to deal with enquiries by phone 07505 961 762 or by email David@crbproblems.co.uk where he gives free and confidential initial advice on such issues.
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