For four long years the Home Office fought tooth and nail through the courts to thwart a challenge to the legality of DBS criminal records checks. Backed by campaign groups (including Unlock), some brave individuals took their cases all the way to the Supreme Court to try to stop mandatory disclosure of minor and historic convictions to prospective employers. The Home Office could have acknowledged the unfairness of the system in 2016 and agreed to reform. But they never did and, even after being defeated on most grounds in the Supreme Court (in 2019), they took a year and a day to put forward legislation to comply with the judgment.
But this occurred mostly before Priti Patel became Home Secretary. She is renowned as a supporter of tougher justice and has called for those who commit crime to “literally feel terror”. But she seems to have a much more liberal side when it comes to miscarriages of justice and some types of criminal records. The Home Secretary recently published a letter to Sir Richard Henriques about Operation Midland, supporting his concerns that more needed to be done to right the wrongs of that significant miscarriage of justice.
Recently Priti has championed reform of another kind – she wants to restrict the records kept by the police about individuals. In particular, she is apparently unhappy that the police are formally recording incidents which are not crimes. “Government sources confirmed that the home secretary has told the College of Policing to drop guidance to forces that those accused of non-criminal incidents should have them recorded on police files”. The Home Secretary’s concern is shared by many who come into conflict with the police, but are not actually convicted or cautioned for a crime. The police can record whatever they think is relevant about an individual – this can include unverified allegations, non-crime incidents, acquittals or information about who the suspect lives with. Most people have no idea what information the police have on computer about them.
Such “intelligence” matters because the police have discretion to reveal it in an enhanced DBS check. This is the highest level of criminal records check and can be requested by employers for any prospective employee/volunteer who would be working with children or vulnerable adults. Employers make their own judgements about information revealed. Police intelligence which appears on DBS checks can be a barrier to getting a job – no smoke without fire is a strongly held belief.
The system is an unfair one – if you have been acquitted by a jury of a crime, why should an employer be informed of that acquittal twenty years later? Why should an employer know someone might be a member of a gang, if that information comes from a third party and is not verified? The Home Secretary has by no means prevented the police from disclosing all “intelligence” on DBS checks, but she understands the negative potential of such data.
Priti Patel was particularly concerned by cases where someone accuses someone else of committing a hate crime. Even if the police consider the particular incident is not a crime, they can record it as a hate “incident”. Harry Miller, a retired police officer, put out a tweet which was perceived to be transphobic by some. Humberside police recorded this as a non-crime hate incident – action being challenged by Harry in court. 85 year old Douglas Kedge wrote a letter defending parents’ right to have an abortion in the case of the foetus having downs syndrome. His letter was recorded as a hate crime incident by Thames Valley Police. Patel’s concern about such cases may set her on a collision course with senior police officers. The College of Policing is fighting in the courts to continue to be allowed to record non crime hate incidents since these “measure tensions effectively and…prevent serious hostility and violence”.
Will Priti prevail over senior police? Will she move from seeing the the unfairness of these police records to seeing the unfairness of the DBS checks in general? For every one bit of police intelligence revealed on a check, hundreds of irrelevant cautions and convictions are revealed on other DBS checks. The Supreme Court Case achieved some progress is making criminal records checks fairer, but we still have a long way to go. Today, a 19-year-old who pushes someone and receives a caution for actual bodily harm will still have to disclose it 20 years later when applying to be a youth worker. So, here’s hoping Priti Patel is a convert to radical criminal records reform. If you support reform of our unfair system, why not sign up to join the #FairChecks movement?