Challenging CRB checks22/04/2013
Frequently significant numbers of medical students, doctors, teachers, health professionals, nurses and social workers have experienced the nightmare of historic events or spurious allegations having a draconian effect on their reputation and curtailing their career overnight. They can be affected at the time of application for a job or entry to a profession or as a result of misconduct.
All too common are the stories from students on the brink of graduation or entry to their chosen profession where disclosure on the application for registration reveals something of a “blemish” which throws into question their fitness and suitability for practice.
Failure to Disclose ?
The double whammy comes when through fear or ignorance applicants fail to disclose relevant cautions or convictions or other information which is subsequently revealed through the CRB check. The failure to disclose is then treated usually as a distinct matter of dishonest misconduct which in turn can prevent someone from pursuing a professional career.
The process by which the CRB provides criminal record data is called “Disclosure” of which there are two levels- Standard and Enhanced. The checks are available to organisations and for a number of professions, offices, employments, work and occupations listed in the Exceptions order to the Rehabilitation of offenders Act 1974.
Standard disclosure applications are checked against the Police National Computer and are usually turned around in 10 days. Enhanced disclosure affects those who are involved with greater contact with children and/or vulnerable adults and include:
Doctors, nurses, midwives, teachers, pharmacists, health professionals across a broad spectrum, Judicial appointments and some volunteer positions such as Scout or Guide Leaders, Youth workers etc all require Enhanced Disclosure.
The Enhanced Disclosure involves an additional request for information from the police as to any other information held on their files that may be relevant and principally this could be investigations that have not led to formal criminal prosecutions and a criminal conviction/ caution resulting in a criminal record as such. These are usually turned around within 28 days. Both types of checks involve a search of the Registers held containing lists of those who have been barred from working with children or vulnerable adults. No one would disagree that those who have committed serious offences and in particular offences of violence or sexual assault are to be prevented from having access to or working with children or vulnerable adults.
Equally many professional bodies for example the GMC and NMC have clear guidance in respect of the treatment of minor offences and particularly historic matters and the extent to which further additional information is to be sought in such cases. Many can, subject to the satisfaction of fitness to practise criteria and by providing detailed accounts in respect of the incidents in question, be able to continue if minor offences are disclosed.
Relevant information ?
Problems often arise in the context of the disclosure of additional relevant information by police, in the context of an Enhanced Disclosure Application. The extent to which data is deemed relevant is a matter for the officer considering the application and the type of information can be very broadly defined. In exercising judgment there can be situations where the information goes well beyond what most would consider fair and relevant. Many websites can be found in which stories are told of the experiences of incidences of neighbour disputes etc which occurred a significant time ago being brought to light and where the facts are entirely disputed.Or of campaigns to impugn someone’s reputation whereby false and malicious allegations are made, eg against teachers.
The aggravating feature is that where a matter has not been the subject of a formal criminal prosecution the allegations are merely that- untested through the rigours of a criminal trial. The fact is the information can fall short of an actual prosecution or arrest, conviction or caution. It can be any information which has come into the hands of the police by any means and can include an investigation which resulted in an acquittal or details of behaviour which is not criminal at all. The policy behind the legislation in terms of the protection of children and vulnerable people is that even if the information “might” be true it is better to disclose than not.
Inaccurate information ?
What if the information revealed is inaccurate or incorrect or relates to someone else?! There are even those who have been the victim of identity fraud and convictions become registered against their name.
Disputing the Record
Many fail to appreciate the opportunities availed them of challenging the disclosures where the facts of a matter are in dispute or where they can make representations as to the relevance or impact. Putting your side of the story can be critical and especially where otherwise the only information relied upon by the police can be untested hearsay and sometimes inaccurate and misleading statements by those intent on destroying reputations and in due course possibly even livelihoods.
The reality is that you are not able to challenge the information within the disclosure before it is made. Once it has been disclosed you are able to open a dispute with the CRB but it can be a painful and drawn out process. Legal assistance in this regard can be key.
Many do not realise that at the time of an incident records in police notebooks can be made and subsequently find their way into the CRB disclosure. It is critical that people make challenges at the relevant time of the investigations and if police are called to deal with an event, make sure you ask to see the police notebook entry or add your representations and account. It is much harder years down the line to challenge the accuracy or content of the notes which are relied upon and form the basis of the additional disclosure.
Alternatively representations can be made with the prospective employer in the event of a blemished record but it is seldom that this last option appears anything other than futile. Most employers are fearful of employing anyone with a criminal record full stop.
Cautions Convictions Reprimands Warnings
Many are also persuaded by fear of the police and the trauma of attending the police station that they accept a caution or warning without appreciating that this will be subject to mandatory notification procedures for most members of professions and will affect a CRB check. They do not appreciate that the failure to challenge or dispute the facts and the evidence through the process of a criminal prosecution and trial is not something they can seek to do later “ by the back door” so- to-speak and can in itself lead to damage of one’s integrity.
If you are investigated by the police for any reason, for example possession of drugs, theft, drink-driving, it is important if you are a regulated professional or a student intending to enter one of the professions that you seek specialist legal help at the earliest opportunity. There are different considerations to be made in different contexts and being consistent and recognising the impact of any of the above in respect of your fitness to practise is critical.
It can be an arduous process mounting a challenge after the event.
If you are affected by CRB records or facing fitness to practise investigations contact
Rachel Buckley for a confidential no obligation discussion.
Click here to be directed to our CRB page
Every case is different and you should seek specific legal advice. Banner Jones has an experienced team of defence lawyers have a proven track record of managing a wide range of regulatory and professional disciplinary matters from initial complaint or investigation through to full scale proceedings before Fitness to Practise Panels.
Please note the above is not a definitive statement of the law or procedure in this particular area and is intended as a general guide only.
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