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Christopher Stacey
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Moostrasse said...
There was a third case, which is being glossed over. AW had a sentence for manslaughter, at the age of 16. She was sentenced for five years. Therefore, on the current tariff, her sentence will never be spent.
81. There are various ways in which the ROA Order could be amended in order to achieve compatibility with article 8. As we have seen, these include identifying disposals as exempt from its scope by reference to the nature of the offence and/or the date when it was committed and/or the age of the offender at the date of the offence. The solution proposed by Mr Coppel would involve a major legislative change from the existing system. There is a fundamental difference between the current blanket scheme and one which leaves to employers and employees the difficult decision as to what article 8 requires on a case by case basis. Section 3 of the HRA does not require or permit the court to make legislative choices of this kind. In our view, the decision as to how theses difficult issues should be resolved should be made by Parliament. (Worryingly)
I just can't get my head around this one. Why should the ROA Order be amended? Should it not be the exceptions order that should be amended, as in tightening of the gaping flaws in the process? It's currently not difficult, the ROA, the exceptions' order is the one whereby most abuses happen. Or am I getting this wrong? They mean the exceptions order. Right at the beginning, point 1, they say that when they say "ROA Order" they mean the Exceptions Order (as opposed to "the ROA"  
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forever changes
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BT said...
I fully accept people who have committed a sexual offence should not be able to become licenced cab drivers Why? Not sure why you've picked cab drivers as an exampl but this is the one size fits all argument, isn't this whole debate really about proportionality? Surely employers should be able to carry out a risk assessment of someone with a conviction based on the facts of each individual case and not extrapolate one isolated incident into there being the inevitability of future offending Post Edited By Moderator (Moderator) : 30/01/2013 14:19:11 GMT
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xl
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It's interesting how the step down process was in place; then following a court of appeal hearing the step down process was stopped. Now another court of appeal hearing states that there should be something like the step down process. Perhaps if the original court of appeal hearing took more of a realistic approach and weighed up the consequences of their initial descision then all of this could have been solved a long time ago.
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xl
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I think it's because the original hearing didn't want the police to be in control of who's records were disclosed and it should be a govermental role; I can't see why they couldn't put the step down process itself into legislation. Its also interesting that the police have said that they only "suspended" the step down process; not scrapped it - who knows
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xl
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Not really so simple; and pretty much Aspire you describe the system that is in place. You shouldnt be able to prevent someone from being a teacher, a doctor etc if they commited a crime 15-20 years ago; in many countries you can apply to seal your record after and pursue those careers A far more sensible approach is to have an independent panel who can assess who is/is not elgiible to work in certain professions. Once they give the green light no criminal record checks should be needed. The employer shouldnt be in a position where they can decide. How can a proportionate system be in place when the employer will feel an increased element of responsibility if they employ someone with a record.
Ultimately however there will always be a line that has to be drawn with a filtering approach; which isn't correct. Each person and their circumstances when they commited a crime and the level they are rehabillitated are different. A flexible approach is required and alos an approach that gives people hope and a chance.
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xl
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I agree charh; the police abused the caution system; now they may say that cautions shouldnt be deleted as people with violent / sexual offences have cautions. But they also would have stated when issuing the caution that "its just a caution " you cant have it both ways
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Aspire
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All valid points and I agree with you xl, someone with a 20 year crime should not automatically be denied the opportunity to work with vulnerable groups and children. I do know of someone who is a teacher with a DUI offence from 10 years ago and a nurse who was cautioned for shop lifting when they were 18 (30 years ago). Both are in work and seem to do a great job! A consistent approach is obviously not evident though from the threads on here.
I have always thought that there is no way the Govt will get rid of the barred lists, and I agree with this to some extent. Maybe the way forward is that we just have Basic Disclosures and different barring lists for children, vulnerable adults, FSA and after certain amount of time people can apply to be removed? As happens now? This would be a type of filtering? There are real downsides to this as it would probably mean a blanket ban for all people on the lists if employers did not feel they had to exercise judgement. But at least there would be consistency and people would know where they stand? As I am typing this I can see so many issues with this approach. Maybe it would be up to the Courts to state when sentencing to make recommendations about who would be seem to pose a risk and the reasons why? At least this would take the power away from the police.... I will reserve comment on that.... and to some extent this is happening.
Moo, C777, I have lived and worked in a few European cities too and can honestly say that there is nothing Great about Great Britain anymore in comparison, we are such a nanny state. I nearly threw my banana at the TV last night when I heard that the Govt are thinking of collecting information for a national database from our medical records of how much we weigh and how much we drink!! Whatever next.... no don't answer that.... the though just makes my blood boil.
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Aspire
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Liberty: Author: Corinna Ferguson, Legal Officer
Yesterday’s Court of Appeal ruling on CRB checks was widely regarded as a triumph for human rights and common sense. The current system of automatic disclosure – regardless of relevance to the job at hand – is clearly disproportionate. That’s why the Court recognised that it’s incompatible with Article 8 of the Human Rights Act, the right to private life.
Regrettably some of our most popular newspapers saw things differently. Apparently preoccupied with their blind hatred of the Human Rights Act, they decided that the judgment was an outrage. And their news stories and leading articles were so full of myths and spin that readers could easily jump to the wrong conclusions.
So let’s set the record straight, shall we?
https://www.liberty-human-rights.org.uk/news/2013/crb-setting-the-record-straight.php
I also read today that if this does get to the Supreme Court after the Govt has challenged - it will be a year before anything is done.... so please don't get your hopes up peeps. It's a step in the right direction...
Aspire
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Aspire
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Hi Charh777, I totally agree with your points. I have worked in senior HR roles over the years and even the best organisations in the world do not have the skills, knowledge and experience to make a reasoned judgement. They have clauses impacting their reputational risk, bringing the organisation into disrepute etc etc. Also, who wants to be the social experiment and be laballed ex-offender (which I hate) and monitored more closely for performance, time keeping etc?
Goodguy make a valid point with having the ROA as a baseline, but if the new shorter rehabilitation periods come Spring, then there will be public riots if people with a fine given for assault were then able to go work with vulnerable adults and children as they were spent. I think we should keep ALL data for enhanced checks for roles that ONLY work with those groups. Standard checks should be binned in my view. They are the most abused. This will only happen if the exemption list is scaled back to common sense levell. Life would be so much easier for all - employers and employees. I work as a teacher, nurse, Dr..... etc and I need a enhanced check. Otherwise, I have reformed and I need a Basic check that I have fulfilled the requirements of the Courts and am Spent. Simples.
Magic wand.....
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Eustace
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Moostrasse,
I completely agree with your central point. It is down to the initiative of the individual. At the end of the day, we could have all the liberalising measures in the world and all sorts of kind gestures made towards those of us convicted of crimes, but that just relies on other people doing things for us. It's down to each of us as individuals to make something of our lives, not to rely on things being done for us. I don't wish to be unkind to some people who visit this forum, but having read quite a few threads on here it's obvious that many people want to just rest on the obvious injustices of the ROA and the other personal consequences of their crimes without taking responsibility for their own lives. It's an attitude that is reflected to a degree in society-at-large among people who whine about this and that instead of taking control of their own lives. That sounds terribly reactionary, I know, but I do think it bears out from my observations. The ROA and the DBS are unfair and arbitrary in their effect and do need a radical overhaul, yes, but none of us are owed a living.
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Eustace
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Somebody said...
Well, the recent ruling means a judge saw sense. Which gives us hope... However, I can't still help but feel we just will not get it here. With the public and media jumping up and down about the safety of children, I have little faith. It's a money making scheme and brings in a lot of revenue. Umbrella companies are everywhere and I'd certainly be interested in their criteria for registration which enables them to make the checks.
The checks that are available for protection of children and vulnerable adults is a separate issue, as Liberty point out, they and I fail to see what Ian Huntley has to do with this ruling. Nothing whatsoever. Just media and government scaremongering. Judging by the comments on many forums discussing this recent ruling, the amount of people who don't understand it, is immense. The country is obsessed with lists and people on them.
For me, the answers are simple:
1. People with convictions to know their rights.
2. Guidelines for screening. I.e. Full explaination of the position being exempt from the ROA, and detailing the regulated activity with children/vulnerable adults list.
3. Tightening up of the exception's order.
4. Employers to clearly state on their application form they are non-exempt from the ROA.
5. Two reasons for CRB checks. One for positions exempt from the ROA, the enhanced check. Basic check for positions under the terms of the ROA.
It is so complicated currently for people and it is illegal for some companies to ask for ECRB. We should remember this.
I have said this before. I have just completed website content for a recruitment company, specialising in childcare, teaching and construction. The owner of the company had no idea of what checks were in place, he simply had on application forms "Have you ever been convicted of a criminal offence" And there are many more companies out there who are not aware of them. Another friend who has her own HR consultancy, she has no idea at all and she's an employment lawyer by profession. It's ridiculous. Here we have powerful and classified information being released in shaky hands and not many people know how to handle this. Bizarrely named a "certificate" and expires the day it is printed.
The country has gone mad.
(a). most business owners are confused by the disclosure and barring regime (as it is now terminologically known) and do not know how or why they should access it;
(b). those who have an inclining about what to do tend to make use of CRB/DBS inappropriately (i.e. illegally and unlawfully);
(c). those who are a little more independent-minded tend to disregard and ignore it altogether (obviously this does not include those in 'sensitive' professions and occupations);
(d). most have a relatively unsophisticated understanding of how to judge 'risk' in this area, mainly because of the inherent crudity and limitations in the system itself.
I was talking to the owner of a small domestic cleaning company last week who told me she could, if she wished, insist on blanket DBS checks for all her cleaners, as many other cleaning companies do. I agreed she would probably get away with this, but she added that there was no point as the certificates that come back are immediately out-of-date (the same point as that made by Moostrasse above) and, to paraphrase the owner, a CRB/DBS check is of limited value when assessing risk and actually causes more problems than it solves. Now, I can see a slight flaw in her reasoning in that surely a criminal records check should form part of an overall assessment of risk, and even if it comes back unsatisfactory in some way, that need not preclude employment - in reality, it would depend on the nature of the convictions revealed, and time elapsed since commission of the offences, etc. I actually suspect the real reason for not using the checks is financial: they are very expensive and consequently most small businesses just won't bother with them. I myself once owned and ran a law firm and, though I did consider it, I decided against routine CRB-checking as it ain't worth the candle. I think it was more expensive then than now, but even at £26.00 a pop, it soon adds up and if margins are tight and you need to deploy staff quickly, most business people are honestly going to think: 'why bother?'
This kind of brings me to my own central objection to criminal record checking. It seems to me an unwarranted interference in what should be private decisions. It's fine where someone aspires to work in a financially-sensitive profession or occupation or if they are likely to come into contact with prepubescent children, let's say, but in all other respects it's just over-the-top nannying and actually quite insulting to the general public in that it implies we are not capable of making our own decisions without a certificate from the state. The apologists will say it's all about risk assessment and even an unsatisfactory DBS is not definitive and final as to employment decisions and other matters, and I actually agree with that argument to an extent, but let's not pretend here - in the real world, when I was an employer, if I knew a job applicant had a serious conviction, I would be concerned. Not out of bigotry. In fact, in my past life before I offended, I had very liberal views about criminal justice and penal matters and I always thought that ex-criminals and ex-prisoners should be given a fair go. The harm is in the disclosure, which if we're honest, shouldn't happen because it's none of my or anyone else's business.
I had a real-life dilemma along these lines. about 4 years ago, when I was still considered 'respectable', I had to find a lawyer to fill a certain post for me and I interviewed several. I decided on the best candidate and I was going to offer him the job. Just by chance, I decided to google his name. Actually, it was pretty standard practice for me to do so. I used to check out on the web almost-everybody I encountered. Guess what came up? This guy had been arrested many years before for looking at mucky pictures on the internet. Not just any old muck, mind, but pictures of children. He had been convicted for possession and, if I recall rightly, handed a suspended prison sentence. I delved further and discovered that his practising certificate had been suspended by his professional body, though he was eventually allowed to work in law firms again (subject to the regulator's prior permission). I think you can guess the rest....The job offer went to somebody else. But what if I had considered this information in a different way? Could I have employed him? Post Edited (Eustace) : 09/02/2013 07:41:32 GMT
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Eustace
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Moostrasse,
I agree that the 'line of least resistance' is the standard disclosure and if the ROA was tightened-up and access to DBS checking was made more restrictive, that would go a long way to help. However, there is a more fundamental problem that is highlighted by a comparison with similar systems in other EU Member States. We do need criminal records and we need some means of checking them, but disclosure ought only to be permitted in limited circumstances that are governed by risk, as is the case elsewhere. It is also important there is a means for society to 'forgive' even serious offences. Other EU Member States routinely expunge criminal records, even the most serious, so why don't we?
There are now 9 million people with criminal records in this country, and some 80,000 of our fellow citizens languishing in prisons. This is shocking. One area this impacts on is what politicians like to call our 'global competitiveness'. Our politicians like to wax lyrical about a 'global economy', whatever that is, but if competitiveness in a 'global environment' is so important then why are we disadvantaging our citizens with lifelong criminal records? Just to give one fairly trivial but important example, a British citizen with most types of criminal record cannot travel to the United States, or many other countries, without going through the rigmarole, cost and inconvenience of applying for a visa, and with no guarantee of success in either being granted the visa or subsequently gaining entry. Yet citizens of other comparable countries have their records expunged and rendered non-disclosable as a matter of routine. Who is running this country?Post Edited (Eustace) : 09/02/2013 21:28:32 GMT
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simon
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where did you read that?
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Foxtrot
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Judgement here: https://www.judiciary.gov.uk/NR/rdonlyres/C5519A53-E11C-4201-B711-46CF286FAF23/0/rtchiefconstablemanchesterjudgment29012013.pdf
Don't cry because it's over, smile because it happened.
Being ignorant is not a problem as long as you are willing to learn.
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charh777
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Does anyone know if the government have actually appealed yet? I know they have said they will. And the judgement was given on the 21/12/2012 havent the 28 days already expired if they haven't?
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charh777
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yes they cant have it both ways. the police already had a filtering system the 'stepping down process' the only problem was that it wasn't supported by law so the government simply removed it after the ian huntley scandal.
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charh777
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the government said to the court they cant impose a filtering process mainly because there is no definition of a minor offence. But cautions by definition are only given for minor offences and so should be automatically filtered after a couple of years.
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charh777
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In most European countries most convictions are deleted after a few years we should have the same system except for serious and violent crimes.
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charh777
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I have seen a few newspapers/websites mention that they might not filter the convictions/cautions and will simply make it illegal for companies to not consider the applications human rights when making a choice. However in the court judgement Lord Dyson states something along the lines 'when faced with two identical applications one with a minor conviction and one without the employer will always air on the side of caution'. This makes it clear to me a filtering process would be the only way to implement what the judge has said.
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charh777
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"Mr Coppel relies strongly on the point that disclosure does not automatically lead to
the barring of an applicant from employment. Parliament has left it to the employer to
assess the relevance of a conviction or caution. He submits that the employer can be
trusted to take into account matters such as the seriousness of the offence, the age of
the offender at the time, the lapse of time since it was committed and so on. He says
that it was within the margin of Parliament’s discretionary judgment to decide that
this was a sensible and proportionate way of balancing the interests of children and
vulnerable adults on the one hand and those of applicants for employment on the
other.
45. We cannot accept this argument essentially for the reasons given by Mr Southey QC.
Mrs Mason put the point well in her initial report at page 20:
“In my opinion, with the current system, it is unfair to place the
onus on the employer to decipher all of the information
presented to them on a CRB check. PNC extracts can be
difficult to interpret and employers do not always have the
resources and training to fully weigh up and understand what is
being presented to them. Evidence suggests that employers do
not always handle and interpret the information correctly and
fairly. For example, an employer faced with a clean disclosure
and one containing an extract from the PNC may err on the side
of caution and employ the individual with the clean disclosure
regardless of the nature of the PNC extract.” "
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