AMPLIFYING PREJUDICE?
Criminal Records Bureau Disclosures And Racial Discrimination
By Lloyd James BSc (Hons) MPhil.
Copyright © 2010. Lloyd James. All Rights Reserved

Clarification 
I am not claiming in this article that anything included is necessarily unlawful. That can only be decided by an appropriate body such as an employment tribunal or our Supreme Court. My concern is the impact of CRB/ISA disclosures on the welfare of BME individuals and communities. Do the above disclosures advance the social integration of BME individuals? What might be the impact on their life chances? What might be the impact on social inclusivity, equal opportunities and respect for social diversity in general? Is it social justice?

The content of this page is not legal advice. If you believe you have been discriminated against on the grounds of your ethnicity or race contact the Dorset Race Equality Council for advice and guidance on 01202 553003. If you feel you need a lawyer contact your local Law Society for advice.

Summary
The allegation set out below in some detail is that Criminal Records Bureau (CRB)/ Independent Safeguarding Authority (ISA) disclosures might result in racial discrimination, both direct and indirect. This is because these disclosures rely on Criminal Justice System (CJS) data stored on the Police National Computer (PNC). It is known that Black and minority ethnic (BME) individuals are disproportionately represented at all levels of the CJS. What is not known is the reason for this disproportionality. This uncertainty renders the data very unreliable and dangerously faulted. I believe that this gives sufficient reason to warrant an urgent and critical investigation by independent researchers. A system to protect children and vulnerable adults from abuse should be possible without further criminalising and alienating certain innocent and valued sections of our ethnic minority population.

Disproportionate representation in the Criminal Justice System.
According to a brief review published in December 2002, Black people were six times more likely to be sent to prison than White people (often for the same offence). Black people were also more likely to be imprisoned for a first offence. Almost a quarter of the then 72416 jail population came from an ethnic minority background with black prisoners accounting for 15% of all inmates. At that time Black people accounted for only 1.8% of the UK population. (1) So are things improving in our fair-minded land of the free?

The Executive Summary of our Justice Ministry's, “Statistics on Race and the Criminal Justice System 2007/8“ notes that, “Based on this material it can be seen that there are nearly eight times more stops and searches of Black people per head of population than of White people (see Chapter 4), there are four times more arrests of Black people per head of population than of White people (see Chapter 5), and there are five times more Black people in prison per head of population than White people (see Chapter 9).” (2)

"According to the Howard League the number of black people in our prisons is out of all proportion to the size of the Black community yet there is no evidence to suggest that people from minority groups commit more crime." (3) This is an important point because it means that one must account for the disproportionality in the CJS without reference to allegedly higher rates of BME criminality.

In 2003 a Home Office spokesperson said: "We are aware of this situation and while we have this data it doesn't tell us why this is happening and whether this is caused by prejudice or because ethnic minorities suffer from other factors which cause an increase in crime." (4)

The 2006/7 House of Commons Home Affairs Committee Report “Young Black People and the Criminal Justice System” notes that, "Black people constitute 2.7% of the population aged 10–17, but represent 8.5% of those of that age group arrested in England and Wales. As a group, they are more likely to be stopped and searched by the police, less likely to be given unconditional bail and more likely to be remanded in custody than white young offenders. Young black people and those of ‘mixed’ ethnicity are likely to receive more punitive sentences than young white people." (5) The Report made a number of recommendations that have been adopted by government. Annual reports on progress are available. We have yet to see what difference any of this will make.

In a “Department for Education and Skills” review “Getting it. Getting it Right” concerning the disproportionate exclusion of Black children from education, the author writes, “Under the old Baseline Entry tests, Black pupils significantly outperformed their White peers. When the teacher-assessed Foundation Stage Profile replaced these tests the pattern was reversed [Gillborn].” (6)

The author of the Report (which you should read in full to be fair (6)) suggests that some stereotyping by white teachers might be responsible for this change. I would be more blunt. I would suggest that it illustrates what happens when one allows White bigotry to sit in judgment over Black people. I am not suggesting by this comment that all White people are racists.

Amplifying prejudice?
At this point I will set aside the matter of whether the reported disproportionality in the CJS is due to prejudice. I am not suggesting that some prejudice is not involved only that I wish to focus on a different issue. Which is how that disproportionality, whatever the cause, might feed into other systems thus amplifying and redistributing its negative impact. I will concentrate on the CRB/ISA's disclosure service. The ISA Scheme has been currently stopped whilst the government undertakes a review. However, as of 27 June 2010 the regulations introduced in 2009 still apply.

To be quite clear there are two issues that should be causing concern. Firstly that conditions are being created whereby, statistically, certain sections of our BME population will be less favourably treated than others. In other words, certain sections of our BME population will have the odds stacked against them by the CRB/ISA disclosure service acting on dangerously unreliable data generated by the CJS. This can result in a textbook example of indirect racial discrimination within the CRB/ISA disclosure service (Notes: "Understanding racial discrimination"). Unreliable data originating in the CJS might become grounds for actual indirect racial discrimination in the jobs' market and elsewhere. Ill-considered legislation will have taken a deeply concerning and as yet little understood disproportionality in our CJS and turned it into a tragedy.

Secondly, that discrimination will occur because of the deliberate criminal actions of prejudiced individuals in positions of authority or due to ignorance/misunderstanding of legislation intended to protect ex-offenders or both. Remember - prejudice plus authority sets the stage for discrimination. Prejudiced individuals in positions of authority might use a CRB disclosure as a legally plausible front for actual racial/ethnic discrimination. This will be worse for individuals from certain sections of our BME population because of their reported disproportionate representation in the CJS. 

It must also be acknowledged that similar troubling disproportionalities exist elsewhere in society and not only within the CJS.  I have already mentioned the disproportionate rates of exclusion from school but BME individuals are also three times more likely than the average to be detained under the Mental Health Act (7). Some BME communities must thus bear the consequences associated with a higher proportion of ex-offenders, higher than average exclusions from school and higher than average detentions under the Mental Health Act. Most worryingly these disproportionalities show both great persistence and resistance to change. They are likely to equate with higher rates of social exclusion, alienation and stigmatisation. 

There are times when caution is wise.
The abuse of children and vulnerable adults is a very emotive subject. Although all reasonable people agree that these groups must be protected there can be great differences of opinion as to exactly what that means. Legislative solutions need to be fair, balanced, proportionate and have some hope of a successful outcome. We do not need a repeat of the Child Support Agency fiasco. This was said of the CSA in 1999, "It would also appear that much of the (ministerial) interference was as much to placate the media and public as it was about reform and improvement. 'At the policy making stage, the unwisdom of rapid political action in response to and reliance upon public opinion emerges rather clearly,'" (8) Sound familiar? Legislation driven by media fed public opinion might place some politicians in a good light but will it result in good workable legislation that gets the job done?

We can all be lifers now.
Following a judgment by the Court of Appeal (19 October, 2009) it was reported on the CRB's website that, “The police will no longer “step-down” or “weed” convictions, cautions, reprimands or warnings from the PNC, which means that all convictions will be retained on the PNC until an individual’s 100th birth date.” (9)

It should be noted that contrary to what the CRB states above, cautions, reprimands and final warnings are not criminal convictions. However, they will be disclosed by both a Standard and an Enhanced CRB check. Failure to personally disclose if asked would be regarded by most employers as a serious breach of trust and if later discovered might result in dismissal. In applying for certain opportunities such as access to university degree courses the risk of re-offending based of an applicant's PNC record might amount to little more than the interviewer's subjective and not necessarily informed, assessment.

In the UK individuals effectively receive a life sentence for often quite minor offenses. In many types of employment or volunteering, one is now required to justify oneself every time one applies for a new post be it voluntary or paid – for life. Current “good practice” is to repeat disclosures every three years.

Any damage done by relying on unreliable data generated within the CJS is likely to have a very long lasting impact. Society might be paying for the mistakes of politicians long after some of them have departed this world.

3) Self-exclusion has become a real issue in the voluntary sector because of the requirement for CRB/ISA disclosure. For example, “The effect of this treatment is to put some people off volunteering altogether. The Volunteer Survey 2007 found that 13 per cent of men would not volunteer because they were worried people would think they were child abusers (p.16) and 28 per cent of those who responded to an online survey carried out for Licensed to Hug said they knew someone who had been put off volunteering by the CRB process (p.18). The Children's Commissioner, Sir Al Aynsley Green, has said that nearly 50,000 girls are waiting to join the Guides because of a shortage of adult volunteers, partly caused by the red tape of the CRB process.” (13) Think how much more likely this might happen if you are actually an ex-offender. Especially so if you are rehabilitated and the offense dates back many years. Remember in the UK your offenses are on record until ones 100th birthday and will show up in a higher CRB/ISA disclosure. Per head of population self-exclusion is more likely in certain BME communities because of the impact of the reported disproportionality in the CJS. Self-exclusion is also likely to negate attempts to liberalise the system by ex-offender recruitment policies (If individuals exclude themselves ex-offender policies are just so much waste paper). I suggest that the foregoing is an example of indirect racial discrimination with a breathtaking negative potential.

To give some idea of the foregoing potential consider the following. "Sir Roger Singleton, Chair of the Independent Safeguarding Authority (ISA), admitted today that the scope of the vetting database could well increase significantly as social pressure forced individuals to be vetted, even where a strict interpretation of the law said they did not. He said: 'There may be some categories who don't have to register, but who might decide there is a commercial advantage in registering.'" (14) The author further comments, "However, rather than restrict our counting to those legally required to be vetted, we added in assumptions based on the above. We assumed that there would be social pressure to be vetted: and we came up with a figure of between 14 million and 16 million people." (14) That represents an immense potential for considerable social damage.

4)  Fears have been expressed that access to the PNC by both formal and informal routes is growing and that this will lead to a culture that sees records once considered to be confidential and for police purposes only as not being so confidential after all. This might lead to serious breaches of human rights. (15)

Dr. T. Thomas (Reader in Criminal Justice Studies, Leeds Metropolitan University) reports, "Exactly how many agencies have a direct link (to the PNC - my comment) is uncertain as no definitive list appears to exist. A four page document describing non-police users of the PNC as at 29 April 2002 was produced at an Information Tribunal hearing in 2005, but this document has not been made public. The list was shown to David Smith, the Assistant Information Commissioner during the hearing:

... it is fair to say that Mr Smith expressed some surprise .. at the length of the listed organisations (and) ... he asked the not unnatural question 'is it really necessary for all these organisations individually to have access?'" (15)

Here is a list of some of the agencies with direct access to the PNC: "British Transport Police; Civil Nuclear Constabulary (previously the UK Atomic Energy Authority Constabulary); Isle of Man Police; States of Jersey Police; Guernsey Police; Ministry of Defence Police; Royal Military Police; RAF Police; Secret Intelligence Service; Security Service; National Ports Office; National Identification Service; National Criminal Intelligence Service; National Crime Squad; Scottish Crime Squad; Scottish Criminal Record Office; Northern Ireland Criminal Record Office; Regional Criminal Intelligence Offices; Port of Dover Police; Hendon Data Centre; Police Staff College, Bramshill; Police Information Communication Technology Training Services (PICTTS), Leicester; Immigration Service; HM Revenue and Customs; Post Office; Financial Services Authority;* National Health Service;* Department of Trade and Industry;* Office of Fair Trading;* Central Summoning Bureau (Dept of Constitutional Affairs); Department of Work and Pensions* (previously Dept of Social Security); Criminal Records Bureau; Forensic Science Service; Motor Insurance Database; HM Prisons (some of them); National Enforcement Service; Drivers Vehicle and Licensing Authority; and Schengen Information System. * for prosecution purposes only." (15) A secret shared is less secret after sharing. What chance is there that an individual's Right to Privacy under Article 8 of the Human Rights Act 1998 will be protected when so many people have access to confidential information? Even more so if we add in all non-police users (I don't believe those in the list above are the only ones) and users with informal access as referred to above by Dr. Thomas. Because of the reported disproportionality in the CJS certain ethnic minorities will be at greatest risk of their rights being violated.

Trying to restore balance.
The possibility of direct or indirect discrimination in ex-offender recruitment has not been missed by some employers. For example, University of Cumbria includes the following in its "Procedure on Disclosure of Criminal Background for Students in Relation to Work with Children, Young Persons and Vulnerable Adults", "... to avoid any possibilities of direct or indirect discrimination as part of the student experience and in the interests of objectivity, parity, consistency and quality assurance, Disclosure and clearance procedures will be dealt with by senior designated staff (who may in certain circumstances disclose to HOD/HOS/DOS with the applicant’s consent) in the MRC Service and the relevant Pro Vice Chancellor’s office. Where it is considered necessary to interview a candidate in relation to his or her criminal records background, this shall be conducted by a minimum of two senior persons who will normally be members of the Child Protection Panel." (16) In very many cases around the UK decisions are simply left to individuals.

Illegal discrimination.
In theory the Rehabilitation of Offenders Act 1974 (ROA) should give limited protection from discrimination in the jobs market to ex-offenders. However, as we shall see this theory is not to be relied upon.

A representative of the "National Association of Reformed Offenders" (UNLOCK) writes, "Employers and insurers also have a poor level of knowledge of the ROA, perhaps because under the current system, the consequences for contravening it are minimal. This means that employers may inadvertently ask questions, elicit information, and discriminate illegally, without even considering the ROA.

Criminal justice agencies have also been shown to have a poor level of knowledge of the ROA. UNLOCK members have experienced prison officers, probation officers, legal advisors, and third sector workers with no, or inaccurate, knowledge of the ROA." (17) My underlining.

The illegal discrimination referred to above concerns discrimination in certain circumstances on the grounds of a criminal record. However, it would apply equally well to discrimination on the grounds of "race" or ethnicity. The discriminator might simply claim that in his or her judgment a candidate was unsuitable because of their criminal record when in reality racial prejudice is involved (and there are even more refined ways of not employing someone despite what the law might say). If the consequences of contravening the ROA are so minimal what chances would there be of successfully bringing an action for racial discrimination? We would probably hear the refrain from some bigoted "wit" in reaction to a legal challenge "It's not cuz I'm a criminal, but cuz I's Black".

Basic CRB checks.
Recently, we have entered the brave new world of the Basic CRB disclosure. As one private company in the disclosures business explains, "Basic CRB checks are available for all types of employment and voluntary positions not covered by the higher-level disclosures. A Basic CRB disclosure contains details of convictions considered 'unspent' under the Rehabilitation of Offenders Act (ROA) 1974 and held on the Police National Computer. Basic criminal record checks are not job-specific and may be used more than once." (18) Unlike higher-level disclosures, the Basic CRB disclosure has no legal requirement for a paper application. With few restraints anyone can be checked on-line for as little as £15.00. No chance of a senior panel ensuring balance, fairness and a lack of discrimination here. Unfair discrimination is more likely in the case of certain ethnic minorities due to the reported disproportionality in the CJS and the greater opportunities afforded to discriminate.

Not fit for purpose?
The CRB/ISA system grew in response to the understandable outrage at the murders of Holly Wells and Jessica Chapman at Soham by Ian Huntley. In an article published in 2009, Chris Stevenson, the now retired detective chief superintendent who took charge of the Soham investigation that resulted in the arrest of Huntley writes, "I helped to catch Ian Huntley and I know these stupid rules would not have prevented his crimes." (19) Having read Chris Stevenson's article I tend to agree with him. The CRB/ISA disclosure service is probably the most draconian; extensive and oppressive social surveillance and control system ever introduced to the United Kingdom. A system which in combination with unreliable and thus dangerous CJS data I believe I have given good reasons to suggest has great potential for both direct and indirect racial discrimination. How ironic if with its potential for great social damage the ISA/CRB disclosure service is not actually fit for purpose?

Urgent Review needed.
What is now urgently required is a full, independent and rational investigation by trusted and competent researchers of the issues raised above. Otherwise how would we respond to the allegation that as a nation we are playing fast and loose with the lives of certain sections of our BME population?

This article is based on a talk I gave at the Dorset Race Equality Council's AGM 7th January, 2010.