Lord Dyson’s Court of Appeal decision this week on CRB checking is a landmark decision for common sense and proportionality.
When I qualified as a social worker CRB checks had not yet come in. Over the course of my career I have seen CRB checking become a vast industry consuming large amounts of time and money and in my opinion doing very little to protect vulnerable people.
Just to give a sense of how ridiculous the situation has become I will relay an anecdote from my own experience. A number of years ago I was teaching a social sciences subject at a University. This is not a job that requires a CRB check (not yet anyway) and students on the course do not automatically need to be police checked. One of my third year students was going to do a dissertation on respite care for a vulnerable client group. The participants in her study were going to be residents of a respite care facility where she already worked part time. As part of the condition of ethical approval for the study the University (not my current employer) insisted that the student be Police checked even though she had already been Police checked to work in the respite care centre. Not only that, but because I would potentially have access to data about vulnerable people( though this was largely of the nature of whether they were enjoying respite) I would have to be Police checked too. This was despite the fact that I would never set foot in the respite centre or learn the real names of any of the participants on the study.
At the time it did not worry me unduly because I have no history of any type of convictions or cautions. However, what if I had? Supposing I had committed some sort of indiscretion as a young man such as being drunk or disorderly or possessing cannabis? If this had been the case then I would have had the embarrassment of having this revealed to colleagues in my organisation- albeit that they would be expected to keep it confidential.
Over the last few years I have changed jobs several times and had to be Police checked every time, even though none of the PBS would involve me having direct, unsupervised contact with social work service users. If I had had a minor offence then I would have had the embarrassment of having to disclose it every time I applied for a on for the rest of my life and having to pray that people made sensible judgements about its significance.
I can't imagine what that feels like. The right to have a job is a very fundamental human right. Many will say that if you have nothing to hide you have nothing to fear. They also argue that most employers will make fair decisions about the significance of spent convictions. But what is a fair decision about an old conviction and how do employers make a fair decision. When Police checks were introduced they were only for workers who had substantial unsupervised access to children. This was based on strong evidence that offenders with a sexual interest in children were likely to reoffend and would seek jobs which would allow them to get access to children. However, what is the evidence that people seek jobs working with adults to re-offend? Do reformed shoplifters look for jobs as personal assistants to rob the people they care for and if they do then how many cases are there of something like that actually happening? How many people are we actually protecting by the amount of time and resources which are put into Police checking. Would that money be better spent on supervision of staff or advocacy for service users?
Then there is the issue of how individual employers try to make sense of previous convictions. Nobody would put someone with a serious sex offence in a job in personal social services- but what about a fraud conviction from 10 years ago or a minor shoplifting case from 3 years ago? Is Anthony Worrell Thompson a danger to all vulnerable people because he stole something from Tescos a couple of years ago? Does this reveal a brief episode of psychological distress leading to a very bad decision or does it reveal a tendency towards other criminal behaviour. I don't know the answer to these questions because I am not a criminologist. I don't know the criminal profile of people who go on from minor offending to serious exploitation of others. Neither do HR staff in employers all over the country. They will try to come to common sense decisions but their decisions will also be based in part on their predisposition to giving others second chances, or on their prejudices about certain kinds of offenders. They will also be mindful of the fact that if one of their employees does commit an offence on the job or some sort of malpractice then the media may slate them for employing someone of ‘bad character’ even if what they have done is unrelated to the previous offence. There is therefore pressure in a rick aversive culture to not take chances on people.
I really feel for young people who have or explain when they apply for a place on a social work course how they got into some scrape outside a pub after high jinks with their friends years ago and ended up getting arrested. They will have to go on explaining such an incident for the rest of their career.
There is also the issue that social work ought to be a profession in which we welcome people who have turned their life around. People who have been in care as young people are disproportionately likely to have convictions as children due to the fact that Police are often called to events at assessment centres in situations where they would not be called to a family home.
We also need to remember that the criminal justice system does not treat all types of people equally. There is evidence of women being sentenced more severely than men for the same types of offences. Institutional racism in Police forces is well documented in literature. There are also potential class differences in outcomes. Working class children may not realise that a caution will go on their record. Children from richer backgrounds may realise, or be advised, that the Police may decide not to prosecute a minor offense and that they are better off refusing a caution.
As social workers and social work educators we are aware of the imbalance in how people are treated in the criminal justice system though we judge information from the Police database as though no biases or prejudices exist.
Then there is of course the issue of what a Police check does not reveal. The person who got caught shoplifting 10 years ago may have learned their lesson and reformed or they may just have got better at stealing and not been caught again. Many people who are sexual predators go on offending for years without a single conviction. CRB information can give a false sense of security about a candidate for a job. It only reveals convictions. The usual response to this point is that people say that we need better Police checks and we need to include intelligence and suspicions which the authorities or employers had about people. A sort of Minority Report situation where we can spot the offenders in advance using Police data.
People point to the Ian Huntley case or Jimmy Saville as people who might have been stopped with better use of Police data. Actually there are much more efficient and simple ways of dealing with such situations which don't involve computers. Ian Huntley would not have been employed as a caretaker if his employer had taken the simple step of asking for a reference from his previous employer. As for Jimmy Saville we can ask why a Disc Jockey ( albeit one with a clean record) was given unlimited access to children's hospitals, psychiatric units and hospital morgues.
The real keys to keeping service users safe are proper supervision and oversight of staff, good whistle blowing procedures and advocacy for service users to ensure that their concerns and complaints are listened to and investigated properly.
I suspect that the real appeal of Police checking lies in people's faith in computers as a magical source of information and insight. Just as Willow, in a Buffy the Vampire Slayer who could google all sorts of arcane information about demons, many of us think that Police computers will issue forth all sorts of secret data on suspicious characters. It is actually a way of outsourcing responsibility for good selection processes and the ongoing safety of service users.
The real path to safe practice I feel lies in how we supervise staff while they are working. There is a role for CRB checks but the present level of Police checking is neither necessary nor sufficient to the role which most of the sector thinks it ought to play at present.
Selection and supervision of staff who work with sensitive clients is a complex and ongoing process. It cannot be outsourced to a police computer.
Let’s reform this process, get some sense of proportion and stop outsourcing our responsibilities.