Inadequacies have emerged in the procedure for issuing enhanced criminal records certificates. It should give schools pause for thought, says Richard Bird.

Checks and balances

Ever since the Bichard Report exposed the failure of the two police forces involved to produce a criminal record certificate that accurately reflected the danger that the Soham murderer posed to young women and children, allowing him to be appointed as a school caretaker, there has been a concern that enhanced criminal records certificates (ECRCs) have been produced on the ‘precautionary principle’.

The precautionary principle states that ‘you can’t be too careful’, a classic flight from one extreme to another with deplorable consequences. Along with ‘knee-jerk suspension’, it has sometimes seemed as if, once any allegation has been made, a teacher can say goodbye to the profession.

The Protection of Freedoms Act 2012 imposed a new test of ‘reasonable belief in the relevance’ of information included in the certificate. But the courts have also picked up these concerns. R (on the application of RK) v Chief Constable of South Yorkshire Police & Disclosure & Barring Service is the most recent case and if teachers felt paranoid about enhanced criminal record certificates before, this case would confirm that paranoia.

The facts were simple. A group of girls alleged that Mr R had touched their bottoms. He maintained throughout that the allegations had been maliciously cooked up in revenge for getting a boy permanently excluded. In court, he was acquitted of all charges.

Subsequently, he was dismissed from his school for less serious reasons that had not been brought before the court. Despite the school’s referring him neither the then Department for Children, Schools and Families (DCSF) nor the then General Teaching Council (GTC) (England) barred him. When he applied for other jobs, however, the ECRC issued effectively did bar him.

Judicial review

Mr R sought judicial review and obtained an order that the certificate should be withdrawn, that in any substitute certificate the word ‘offences’ should be altered to ‘allegations’, that it should record that there had been inconsistencies in the allegations, that he had alleged collusion in the allegations and that he had been cleared by a jury.

The guidance from the Secretary of State to the police on completing certificates is that it is disproportionate to disclose ‘trivial incidents or ones that demonstrate poor behaviour or merely relate to an individual’s lifestyle...… that the person making the disclosure must weigh the impact of disclosure on a person’s private life and adverse impact on the prevention of crime... [and that] information must be given in a meaningful and consistent manner with reasons for disclosure clearly set out’.

It requires a very careful balancing of all considerations. The judge in this case found that ‘careful balancing’ had not occurred. He quoted with approval a previous ruling that also described the case. There had been “too high an emphasis on the fact that any allegation of sexual interference with a youngster is necessarily grave and serious, and implies that a disclosure in any such case should – whatever the consequences to a claimant – be revealed. It does not strike the proper balance.”

Almost unbelievably, South Yorkshire police then issued a second certificate as flawed as the first that has also been quashed. In that second certificate, the judge found that, among other things, there was a suggestion that the unproven allegations were being equated with a sex offence and an implication that, even though the allegations were dismissed, “there was still something in them”. In short, “It was the product of an improper approach to proportionality.”

the judge also made strong suggestions as to what should and what should not be disclosed in a revised form if it were not to fall foul of the courts a third time. any mention of the court case and the allegations leading to it should be removed entirely.

Supported by evidence

The individual facts of the case are perhaps not as important to members as the possible consequences. It is very likely that, in future, enhanced certificates will be written with greater care. It is to be hoped that the police will note the point that it is not being said that allegations should not be included but that their inclusion should be supported by evidence.

The impression this certificate made on a prospective reader was that the police had decided that the applicant was lucky to get off and they would make up for the jury’s mistake. But it is also very important that the police do not return to only recording convictions and cautions – the policy that gave Ian Huntley a clean ECRC.

A certificate needs to be scrutinised for the faults that the judge found in this one. Questions to ask include: Is there irrelevant material in this certificate? Are suspicions based on evidence? If so, how convincing does this evidence seem to be?

As the judge recognised, protecting children and young people is desperately complex. Tick boxes and matrices can never be a substitute for the exercise of careful judgement.

• Richard Bird is ASCL's legal secretary

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