Police Bill – millions presumed guilty

Concerns about the current Police Bill extend beyond police powers "to bug and burgle".

Part V of the Bill enables the Secretary of State to issue certificates relating to criminal record checks. It is likely to affect millions of people. Criminal record information will be far more accessible, undermining principles of rehabilitation and privacy.

That said, the Bill is welcome in that it places on a statutory footing the "hotchpotch" of existing practice, where disclosure is regulated by a mixture of legislation, Home Office circulars and case-by-case police decisions.

Government minister Baroness Blatch said the Bill's primary concern was improving the speed and quality of police checks on people seeking jobs with direct access to children. This principle is to be welcomed. But the Bill goes well beyond this.

It makes three types of certificate available: criminal conviction certificates, criminal record certificates and enhanced criminal record certificates.

Criminal conviction certificates enable individuals to apply to the Home Office and, on payment, to receive a copy of a certificate of their criminal convictions. This will consist of convictions unspent under the Rehabilitation of Offenders Act 1974.

The certificates are likely to become common currency before employment or other services are offered. Those with unspent convictions will find gaining employment or other services, such as housing, more difficult. The minister told the Lords that 12 per cent of all people born in 1973 have unspent convictions. Other statistics show that 34 per cent of all men have been convicted of a criminal offence.

Research shows that people with convictions are not offered employment and that this makes them more likely to commit further offences.

Criminal record certificates involve a "full" check, made available only to prospective employees, trainers or volunteers in occupations which are exceptions to the Rehabilitation of Offenders Act 1974. These include lawyers, nurses, police and traffic wardens.

To get a full certificate employers will have to be registered with the Secretary of State. The check will include spent and unspent convictions and cautions. The individual will apply for the check but the application will be counter-signed by the registered group. The data will be copied to the registered group.

Checks for enhanced criminal record certificates will be limited to two areas – those with unsupervised contact with children and young people under 18, and gaming, betting and lottery licensing. It will comprise the "full" check, plus non-conviction information, such as bindovers, acquittals and police intelligence.

Decisions about what material is to be included are to be left to the Chief Constable. The effect of the Bill is that some people will never be rehabilitated for employment purposes.

Whether cautions should appear on certificates is questionable. They should only be used for minor offences and are not convictions. The admissions they represent are often made without legal representation. Cautions are also the preferred way of dealing with children.

Similarly, a magistrate may bind over an individual to keep the peace. This need not be consequent on being convicted, although a record of the bindover will be retained. They need not relate to criminal activity.

Equally disturbing are the proposals for police investigations and acquittals. These will elevate records of suspicion, "bad company" and hearsay into a life sentence for many people. The Bill raises serious concerns about reversal of the presumption of innocence.

A failing of the Bill is that there is no formal appeals procedure against inaccurate or irrelevant information. Challenges to the accuracy of certificates are to be made to the Secretary of State, not to an independent tribunal. Without an independent means of review, guaranteeing due process and a duty to give reasons, the only remedy against the decision of the Secretary of State will be a judicial review.

The Bill's sweeping nature suggests its purpose is more than protection of children.

It is regrettable that discreet legislation, allowing relevant police information to be revealed under enhanced checks, was not proposed. This could have granted individuals the right to appeal. Instead, if it is enacted the Bill will cause much needless distress to millions of people.

It will, however, benefit lawyers. We can anticipate a considerable number of legal challenges.