Criminal Records (Public Access) Bill
Debate between Christopher Chope and Baroness Featherstone(12 years, 12 months ago)
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The Parliamentary Under-Secretary of State for the Home Department (Lynne Featherstone)
I am grateful to my hon. Friend the Member for Christchurch (Mr Chope) for giving me this opportunity to talk about his private Member’s Bill. I will, if I may, set out how the current system works and our concerns about the Bill as drafted.
The Bill seeks to set up a system under which details of all court convictions will be held by the Criminal Records Bureau, and access to those records will then be available to the general public. This involves several issues, which I will tackle one at a time. First, the Bill would require court conviction details to by held by the CRB. The CRB was established in 2002 and acts as a one-stop shop for organisations checking police records and, in relevant cases, information held by the Independent Safeguarding Authority. It is important to understand the purpose of the criminal records checking system and why there are so many careful considerations about what information the CRB may hold and issue compared with the proposed system, which would be open and accessible in every detail to everyone in this country.
At the moment, two levels of CRB check are available: standard and enhanced disclosures. Both contain conviction information taken from the police national computer, with enhanced disclosure also involving a check of local police records for relevant and proportionate information —local police intelligence is sometimes termed “soft” information. A standard certificate can be obtained if two criteria are fulfilled: first, that the position under consideration falls within the exceptions order to the Rehabilitation of Offenders Act 1974; and, secondly, that it has been prescribed under Police Act 1997 regulations as a “prescribed purpose”. That is why I intervened on my hon. Friend to question whether there was an inconsistency between the Rehabilitation of Offenders Act and the laudable desires expressed in his Bill, which perhaps cannot be translated into reality by these means.
An enhanced certificate with barred list information can be obtained if three criteria are fulfilled: that the application falls within the exceptions order; that it is for a prescribed purpose; and that it relates to a position for which suitability information, including barred list information, can be obtained, as also set out in Police Act regulations. At the moment, there are several positions for which barred list information can be given on an enhanced CRB disclosure, including, for children’s barred list information, positions relating to regulated activity in relation to children, other care and supervision for children, fostering and child minding; and, for adults’ barred list information, positions relating to regulated activity in relation to vulnerable adults, registered social care agencies and the Commissioner for Older People in Wales. I am sure my hon. Friend is aware that the Protection of Freedoms Bill is in Committee, where changes to these arrangements are being discussed. There is a further level of check—basic—that has yet to be introduced in England and Wales.
My hon. Friend the Member for Christchurch mentioned the timeliness of CRB checks. In April 2011, consequent on changes to the recording and holding of information by the police, the CRB issued 95.1% of enhanced certificates within 28 days; the figure for March was 95.4%. That is a vast improvement on which it is to be congratulated. Demand for CRB checks has increased year on year and they are now in the millions each year. That improvement is an impressive result.
CRB checks are mainly used for those working with children or vulnerable adults, but they are undertaken for a wide range of other purposes, such as licensing and in respect of people in positions of trust. In addition to the certificates, individuals can make a subject access request if they wish to find out what information is held about them by individual police forces.
The CRB operates under the provisions of part V of the Police Act. To achieve what my hon. Friend suggests in the Bill would require amendments to the legislation. The Bill therefore would not work as it stands.
The Bill would allow anyone to access court records from any court in England or Wales. We rightly have open justice whereby anyone can go into any court to observe what is happening, with a few exceptions involving families and children. The Bill proposes a fundamental change to that access.
Lynne Featherstone
I think that there is differential access; information can be obtained by someone who is present on the day of proceedings or if they read about it in the newspapers. The anomaly, as I see it, is about how much information is available to whom, when and in what fashion. What monitor is available to protect those on whom information is held from people who are not acting in the public interest? That is the test at the moment. Anyone can seek information from a court: the test is whether it is in the public interest. That is a matter for a further debate.
What is being suggested would add to the functions of the CRB by requiring it to keep a central database of all court outcomes, or results as they are known in the trade. We have never had such a database. Under the current system, people can visit their local court or any other court and read the results of court hearings in the local and national press. Newspapers and other media outlets can obtain free of charge copies of court registers containing the outcomes of criminal cases and the details of upcoming cases. As I have said, we do have an open system of justice.
If we went down the road proposed in the Bill, where would it lead? First, there is the question of cost. I need hardly explain to my hon. Friend the Member for Christchurch that the Government are reducing the deficit. All Departments are working hard to reduce their costs, and introducing a new system such as this would incur substantial costs.
Further, what real mischief is the Bill designed to remedy? What benefit would be achieved from setting up such a system? How would it benefit our communities? It appears to us that the aim is to make the justice process more transparent, by allowing anyone, anywhere in England and Wales, to find out about convictions in any court, but why would we need to do that when we already have an open justice system? The Criminal Procedure Rules 2010 state, in paragraph (15) of rule 5.4, that every court register
“shall be open to inspection during reasonable hours by any justice of the peace, or any person authorised in that behalf by a justice of the peace or the Lord Chancellor.”
As court registers contain personal information that would not be made available in court or elsewhere, the change that my hon. Friend suggests would not simply be a matter of transferring the information to the Criminal Records Bureau. Magistrates courts registers are held not by the CRB but by Her Majesty’s Courts and Tribunals Service. Recordable offences—not all offences—are passed electronically from HMCTS to the police national computer, from which the CRB accesses them. Making magistrates courts’ registers available to the CRB would therefore require a process to transfer and store them, with the associated costs.
There is considerable information kept on magistrates courts registers that is not in the public domain. It includes, among many other things, details of individuals’ driving licence numbers, personal details of the recipients of compensation and details of vulnerable victims and witnesses, including those in sexual and domestic violence cases. Court registers also contain much information on people found not guilty or acquitted. Does my hon. Friend think that should be in the public domain, too? If not, as I assume, we would need to find a way of removing that information—again, at considerable cost and contrary to the provisions of the Bill.
Magistrates courts registers also include cases on which there are reporting restrictions in place to stop the naming of individuals—offenders, witnesses, victims or others. Those cases would need to be identified—another costly process, as they are recorded only at first hearing so a linking process would have be identified—and removed from the public register. The Bill does not allow for that, either.
Magistrates courts also hear some civil and family cases, details of which are recorded in the register. Those cases would need to be filtered out before publication, but the Bill does not allow for that. Proceedings on more serious crimes are concluded in the Crown court, and from reading the Bill it seems that they, too, are to be included in its provisions. Clause 1(1) refers to
“any other registers produced by a court listing convictions”,
not just those from magistrates courts. Crown court registers are not currently held electronically. The official record is on paper, and making it available would require extra investment.
It is difficult to see what access to court records would provide for the public unless there were some search facility. My hon. Friend said that there would be, but that is not specified in the Bill. Such a facility would be very costly to develop, as literally millions of records a year would need to be sorted through. Someone could find the result they were looking for only if they knew the exact person, court or hearing involved. Effectively, the public would have access to endless data but get very little useful information—a costly exercise for very little public value.
We are also concerned that the Bill could work against rehabilitating those convicted by the courts. Let me explain why I say that. The Rehabilitation of Offenders Act 1974 sets out various times after which a conviction becomes spent—when it does not have to be disclosed. My hon. Friend said that it would be done in real time, or within relatively real time, and that an electronic system could be devised incorporating a natural lapse of spent convictions. The aim of current legislation is to allow individuals to move on with their lives, particularly those whose offence was at the lower end of the scale. In order to safeguard the more vulnerable elements of our society, such as children and the old or infirm, certain professions are exempted from the Act, and all convictions, whether spent or not, have to be disclosed.
That is where the Criminal Records Bureau comes in. That is why we have an expert body doing the criminal records work. It does the necessary checks, and passes the information on to a prospective employer when relevant. I think that most people would consider that to be perfectly reasonable. It strikes a balance between open access to the criminal records system and the rights of those who have transgressed to move on with their lives. My hon. Friend the Member for Bury North (Mr Nuttall) made a point about people who change their names in order to get away from a criminal record. The Bill does not address that point. However, the CRB has in place a thorough system of identity checking. The registered body, which must countersign any application to the CRB, is under a statutory duty to carry out thorough identity checks. The proposed online system would not put in place anything to cover that loophole.
Hon. Members on both sides of the House will know that we are changing how the system operates through the provisions in the Protection of Freedoms Bill that is before the House, as I mentioned briefly before. Furthermore, the Rehabilitation of Offenders Act was itself the subject of a recent Green Paper, and the results of that consultation process are still under review by the Ministry of Justice. We would not want to take any action that could prejudge or impact in any way upon that review. However, if we put in place the system proposed in the Bill promoted by my hon. Friend the Member for Christchurch, there would be considerable potential for anyone to circumvent the provisions of the 1974 Act and find out about matters that have become spent.
To avoid that we would need to put in place a series of checks to weed out such spent offences, which would add to the cost overall. However, if court registers were made available online or in some other electronic form by the CRB, there would be no guarantee that removing the spent conviction from the records would achieve much.
Mr Chope
That comes as a great surprise to me. I thank the Minister, however, for her response. All the mischiefs she said would arise were my Bill to be enacted are the very mischiefs that can arise at the moment when information is gleaned at the time of the court case by the media. That takes me back to the point I made at the outset, which was that if
“the press or the media had covered the case and was able to get a copy of the newspaper report or media broadcast then”—
at that time—
“although the personal data in question would have been processed by becoming part of those reports—the Appellant would have had legitimate access to the information and the personal data he was seeking…If the local newspaper or media outlet put the court report within a webpage on the internet or as a ‘podcast’ to be downloaded by the Appellant—whether there was a ‘search’ facility on the site allowing specific names or topics to be highlighted and retrieved or not—and then viewed, printed out, played or stored, then all of that is legitimate processing of personal data within the current statutory legislation.”
I am grateful to those who participated in the debate. I think that everybody, except the Minister perhaps, recognises that there is an anomaly. It is inconsistent that court cases can be dealt with differently as regards public access to information about those cases depending on whether they are covered by the media, whether an individual is present in court and so on.
If the Minister reconsiders the issue, I hope that she will recognise that there is an anomaly. If she accepts that there is one, I hope that she will feel that it is incumbent on her Department to try to find a solution. Although my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) poured quite a lot of cold water on my Bill, he accepted that there was an anomaly and that this was an attempt to address it. When the Director of Public Prosecutions talks about the possibility of introducing cameras into courts and reasserting the importance of public access to the criminal justice system, it seems anomalous that we have this problem. One thing that has come out of the debate is that I have accepted that my Bill is probably not the right solution to the problem at this time, but I hope that the pressure of the debate on the Minister will be such that she will try to get her officials to work on coming up with a proper solution—perhaps one that could be brought forward as an amendment to the Protection of Freedoms Bill on Report, as all the issues relating to the criminal records office are being dealt with in that Bill.
Finally, I am very concerned about the inaccuracies on the registers, which must cause everybody great concern. The Criminal Records Bureau is producing inaccurate material. I had a constituent who was a wing commander who wanted to do some voluntary work somewhere. He found that somebody had stolen his identity and that his records had been linked with the criminal records of another person. That caused enormous embarrassment and, in the end, it was only after we went to see the then Minister in the Home Office that things were put right. My constituent was the victim of fraud, but there seem to be a lot of victims of mistake.
Lynne Featherstone
On the point that the Criminal Records Bureau might be holding incorrect information, I am sure my hon. Friend will be glad to know that one of the new provisions in the Freedom of Information (Amendment) Bill means that the certificate will now go only to the individual applicant and not to the employer, giving them the chance to dispute the information before it causes any harm to their employment.
Mr Chope
That is helpful, but my hon. and learned Friend the Member for Sleaford and North Hykeham was making the point that inaccurate information is being recorded in courts. We must have a system to put that right. My Bill relates only to prospective court registers, not historical ones. Even so, I hope we can have a system whereby from now on magistrates court records of convictions are 100% accurate, rather than containing anomalies and inaccuracies. That is my hope—perhaps it is an aspiration—but having said that, I beg to ask leave to withdraw the motion.
Motion, by leave, withdrawn.