The other side of the coin!

CRB checks can give you a completely false sense of security!

Previously in this blog you will have read about Non Sanction Detections (NSDs) and the huge numbers claimed in comparison to the total number of all types of detection.

However, what is not made clear is the fact that when CRB asked the Metropolitan Police to check their records, until April 2006 NSDs were not routinely searched for on their databases. As a result 1.5 million checks were completed without ever checking to see if there was a relevant NSD that should have been disclosed. It is therefore quite possible that those with relevant NSDs for serious offences – including Rape, other sex offences, violence and dishonesty, were given jobs on the basis of the MPS advising that they had nothing relevant recorded against them.

Clearly the potential for relevant NSDs to be missed is enormous! A (now retired) Assistant Commissioner from the Metropolitan Police instructed that a random sample of 500 (previously undisclosed) NSDs were checked to see what the potential ‘damage’ would be. Of those that were sampled, 6.8% should have resulted in disclosures relating to relevant and sustainable information that would have assisted employers to reach a decision based upon reliable information.

If that 6.8% is then considered as a representative sample, then approximately 96,000 additional disclosures should have been made. In the absence of this information, many employers went on to employ some of these 96,000 applicants. They could be out there now taking care of your children and your elderly parents!

This was brought to the attention of senior people in the Home Office, Her Majesty’s Inspectorate of Constabularies CRB, the Metropolitan Police and ACPO.

Britain’s Supreme Court.

On 29 October 2009, the Supreme Court made their first landmark judgement and ruled that much greater consideration of the private lives of job applicants is required when CRB checks are completed. In cases of doubt, the individuals affected should be able to make representations to the relevant Chief Constable before information is disclosed to employers. These most senior judges took the view that if the procedures are not proportionate public confidence in the governments (then) new Vetting and Barring Scheme will be undermined and accepted that the increasing use of such disclosures is a very real public concern.

This ruling is likely to have a profound effect. An increasing number of people are now subjected to some form of vetting or another, including the millions of people who are subject to Enhanced CRB checks. It is therefore crucial that the information that will be relied upon to decide whether or not a person is suitable to hold a certain post or be employed in a particular job is correct and capable of withstanding scrutiny.

In may be argued that in making this ruling – the Supreme Court have effectively ‘raised the bar’ regarding the threshold for disclosure and have also now given those applicants an opportunity to challenge detections and other information that may be unsafe, unsustainable, unfounded or malicious. In this judgement, Lord Hope said ‘that the existing system had ‘all the hallmarks of a rather rigid, mechanistic system, that pays too little attention to the effects of disclosure on the applicant’ the correct approach is that neither public protection nor privacy has precedence over the other.

Lord Hope continued: “Increasing use of this procedure, and the effects of the release of sensitive information of this kind on the applicants’ opportunities for employment or engaging in unpaid work in the community and their ability to establish and develop relations with others is a cause of very real public concern.”

Clearly the Supreme Court was unaware of the enormous numbers of unsafe detections recorded and the fact that misplaced trust in police procedures would do nothing to encourage those against whom unsafe detections were recorded to appeal.

What about the victims of crime ?

As you will have already realised all crimes have victims; whilst on occasions the victim can be ‘the State’ i.e. Going Equipped to Steal or Possession of drugs – there is no actual named victim. In relation to other crimes the victim is often very obvious and named in the Charge, e.g. the person who owned the property that the accused is charged with stealing. It is these cases that I want to discuss here.

In an earlier post I described how the performance culture can operate to the disadvantage of the accused, e.g. they can be shown as responsible for crimes without the necessary checks and balances identifying that a detection is either evidentially or procedurally flawed thereby rendering it potentially unsustainable. However, the same culture can also disadvantage victims of crime too.

At court at the end of a trial an accused is usually either found Guilty or Not Guilty. If convicted then the court are in a position to make a Compensation Order against the accused and in favour of the loser e.g. the person whose property was stolen or damaged. If the accused is acquitted (found Not Guilty) then clearly no such order can be made. However, if the case never gets to court in the first place then clearly the matter will never be considered. This is relevant in a number of ‘Out of Court Disposals’ including Penalty Notices, Simple Cautions, Non Sanction Detections.

Penalty Notices.

In the case of Penalty Notices certain thresholds are set including the value of property stolen by shoplifting or criminally damaged. Presumably the idea here was to limit the types of offence capable of being dealt with by a Penalty Notice to those at the lower end of the spectrum and amounted to a proportionate response to a crime that was not very serious (although I think most officers that would agree that even the most trivial crimes can be considered serious by the victim). These thresholds are currently set at £100 for shoplifting and £300 for Criminal Damage. If the value of the property stolen or damaged goes beyond these figures then Penalty Notices should not be used. Who then is responsible for valuing the goods stolen or damaged?

In cases of shoplifting this is a comparatively simple problem to solve as many of the goods still have their price tags attached or can be traced back to the stores they were stolen from. As a result Police can obtain an accurate valuation quite easily. In cases of damage this is not quite so simple. The officer attending the scene makes a judgement call i.e. a ‘guesstimate’.

Imagine this……. A young lady sitting in her car has the windows smashed by an ex-boyfriend with a baseball bat. The rear screen and side window are both smashed and the value of repair amounts to in excess of £400. An officer attends and speaks to both the victim and the suspect. The suspect admits their guilt and is arrested at the scene. If this matter is inappropriately dealt with by way of a Penalty Notice rather than by taking him to court – then clearly there is no opportunity for the victim to obtain compensation. They must therefore rely on their own car insurance (plus any excess and future increase in premiums) whilst the accused escapes with no criminal record and a fine of £80. So the accused gets a ‘£80 ticket’ and no criminal record and the victim has all of the disruption of being unable to drive their vehicle, and has to pay for the damage to their car.

The officer making the judgement call regarding the value of the damage may be acting in good faith, perhaps they have never been the victim of such an attack, however, their greatest saving is not having to complete the significant amount of paperwork necessary to put together a case file and take the accused to court. Instead they spend a few minutes filling out a Penalty Notice and recording the crime – job done!

In a nutshell you end up with;

  • A very grateful accused who thinks they have been incredibly lucky to get an ‘£80 ticket’ rather than go to court and obtain a criminal conviction and have compensation awarded against them.
  • A very happy officer. They have obtained a Sanction Detection by completing a very small amount of work when compared to that necessary to put a case file together and put the accused before a court.
  • A very unhappy and poorer victim who is less than satisfied with Police response.

Cautions

Once again, the fact that the matter is not heard in court prevents a Compensation Order being made against the accused. An earlier post makes it clear that an accused must admit their guilt before a Caution can be given, it therefore appears strange that whilst admitting causing the damage, there is no requirement for them to compensate the victim.

In the case described above, if the accused had been Cautioned rather than being issued with a Penalty Notice the victim would similarly be denied the opportunity of have a compensation awarded at court.

Offences Taken into Consideration.

This happens when an accused is arrested for an offence e.g. Burglary of a house, and during an interview they admit to having committed other burglaries. Rather than charge the accused with each offence, the officer should ensure that there is a clear admission to committing the other offences and (in addition to any admission) there is other evidence available to connect the accused with the offence admitted. The purpose of dealing with crimes in this way is to reduce court time, but at the same time ensuring that the offender’s admissions were taken into account when sentenced. There is no ‘ratio’ prescribed i.e. Police are not limited by the number of offences they can ask a court to take into consideration alongside a single charge. As a result, there are instances where burglars are charged with a comparatively small number of offences, but have thousands of offences taken into consideration.

Again every single offence admitted is counted as a Sanction Detection. For very obvious reasons, such detections are regarded by Police as some of the ‘cheapest’ detections possible in terms of the time and resources taken to detect them. Ordinarily the offences being taken into consideration are entered onto a schedule (think of it as a list) where brief details of each offence are set out. Each page of the schedule is signed by the accused and the detection is counted by Police at this point. Given that these serious offences are being put before the court and the accused is admitting to have committed them, the court are able to make Compensation Orders in favour of the victims. Things are looking good!

However, in some circumstances the accused has a change of heart (often after the benefit of legal advice – that to admit burgling an extra X hundred private houses is very likely not to go down too well!) so when they appear at court they plead ‘Not Guilty’. Even if they plead Guilty to the offence(s) actually charged or are subsequently found guilty they often refuse to admit the additional ‘TICs’. Unfortunately the X hundred burglaries previously admitted and TIC’d are very rarely investigated further as there is no incentive to do so. Police can only claim the ‘detection’ once and they have already done that when initially recording the TIC. Other than satisfying a victim, where (in the performance culture) is there any benefit in pouring your resources into investigating crimes that have already provided the measure of your success i.e. a detection?? NB; The very recent introduction of qualitative measures such as Victim Satisfaction and Confidence may improve things, however, for many years only the numbers of detections were counted.

Once again the performance culture can result in;

  • A very happy accused person. The worst that can happen is that they are sentenced for only those burglaries they have admitted to or those they were found guilty of.
  • A very happy Police Officer. The X hundred detections for Burglary were credited as soon as the accused signed the TIC schedule. The fact that the accused later refused to admit them at court is of little real interest. Why waste time on investigating an offence that as far as performance figures are concerned has already been solved?
  • X hundred very unhappy victims of burglary. If the accused had admitted the offence at court then compensation could have been awarded in each case, the fact that the accused changed their mind and Police decided not to investigate further effectively denies them the opportunity of obtaining financial redress, especially if their insurance did not cover all or some of the property stolen.
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