An analysis of the law which regulates the disclosure of non-conviction data by the CBR/DBS.

What is it about?

When an individual applies for a criminal record check in England and Wales, a 'standard' check will disclose material relating to the confirmed guilt of an individual in a criminal matter only. However, most checks are at the 'enhanced' level. Here the check will also disclose non-conviction data, including information relating to aquittals, arrests which did not lead to charge, 'contacts' with the police and even information relating to the family and friends of the applicant. This article analyses the manner in which the Courts have sought to apply the legislative provisions which allow them and questions whether such disclosures should be made at all, with reference to the ECoHR provision regarding privacy and family life and the presumption of innocence.

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Why is it important?

This is not a marginal issue: in 2012, around 20,000 individuals applied for 'enhanced' checks and found disclosures were made relating to non-conviction data. This disclosure is usually a 'killer-blow' so far as the applicant's employment opportunties are concerned and such disclosures inevitably condemn hundreds of thousands of individuals to a lifetime exclusion from a wide array of employment opportunities, despite having never been convicted of the offence to which the disclosure refers. This article highlights the potential injustice of such a system, and called for legislative amendment which ultimately came to pass through the Legal Aid, Punishement, and Sentencing of Offenders Act 2013.

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