Human Rights

Acquittals and Enhanced Record Checks

If I’m acquitted will the alleged offence show on a DBS check?

An ordinary DBS (Disclosure and Barring Service) check reveals convictions and cautions. An enhanced check, required for many jobs, may reveal ('non-conviction') information held by the police such as intelligence, arrests, prosecutions and acquittals.

Surely an acquittal shouldn’t be on the check?

This was challenged in Court by “AR”, a qualified teacher, who had been working as a taxi driver when he was accused of rape.

His defence was that there had never been any sexual contact with the complainant, although she had been in his taxi. He was acquitted. When he applied for a job as a lecturer the enhanced check revealed the acquittal and the details of the allegation.

What did the Court say?

AR's appeal was unsuccessful.

The Court said that in certain circumstances such information could be included on enhanced checks and in “AR’s” case it was correct to do so.

Why?

The Court said “in principle, even acquittal by a criminal court following a full trial can be said to imply no more than the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that.”

Who makes the decision?

 In the first instance, the police decide whether the information should be included on an enhanced check (although in practice many matters are ‘filtered’ and removed automatically from consideration).

They can disclose non-conviction information that may identify a potential risk to the vulnerable; the test is based on relevance, truth/substantiation and proportionality.

It is not automatic, therefore, that an acquittal would be disclosed, as the circumstances of the acquittal need to be considered and consideration given as to whether the offender may have committed the alleged offence.

It is vital that if there is any positive evidence that the offender did not commit the offence, for example because the complainant admitted lying, that this is brought to the attention of the police.

 

A decision to include information on an enhanced check can have devastating effects on your livelihood. Such decisions can be objected to, and representations made to the police. If unsuccessful, this can also be appealed to the Information Governance Unit. If you would like to discuss any aspect of this article or your case, please contact me on 07766001774 or via email (contact@crimelawyer.co.uk). 

 

 

The Sanctions and Anti-Money Laundering Act 2018

Sanctions are political trade restrictions and are used to protect national and international interests, peace and security. These include financial sanctions, trade sanctions, arms embargoes and sectoral sanctions. 

The UK's Sanctions regime has now been reviewed with the Sanctions and Anti-Money Laundering Act (SAMLA) 2018 having received Royal Assent on 23 May 2018.

SAMLA has created the framework for post-Brexit UK Sanctions, enabling the UK to impose economic, trade and immigration sanctions, and money laundering regulations, after its departure from the EU. The full Act can be found here, but note that the operative provisions of SAMLA are not yet in force. 

Whilst it has been stated that the intention is not to create substantive changes to the pre-Brexit regime, it is causing a bit of a stir. 

The Foreign Secretary, Boris Johnson, commented as follows: "Royal Assent for the Sanctions and Anti-Money Laundering Act is an important moment for the UK. It is the first of the bills which prepares for life after our exit from the EU to complete its passage through Parliament.

Thanks to this new law, once we have left the EU, we will have full control of our own sanctions policy again. That will give us the power to impose sanctions, including for human rights abuses.

Sanctions are a key foreign policy and national security tool for the UK, and the new legislation will allow the UK to act in line with our own priorities, as well as with our international partners.  It will also provide us with the power to amend and update anti-money laundering and counter-terrorist finance legislation, allowing the Government to keep pace with changing international standards and practices, and help to protect the UK from money laundering and terrorist financing……”

Among the changes, SAMLA introduces the ability for the UK to issue sanctions in response to gross human rights violations through the introduction of a so-called "Magnitsky clause", and seeks to reduce money laundering and tax avoidance in British Overseas Territories through the introduction of public registers of beneficial ownership.

There are, however, a number of concerns about the way in which the new powers are placed in the government’s hands, with broad powers being conferred on the Secretary of State and the Treasury to impose sanctions regulations considered "appropriate" for the purposes of compliance with UN or any other international obligation. This is a lower threshold and raises the likelihood of a more extensive use of the sanctions regimes. 

Other changes to Sanctions regime include the lack of regular review. Sanction regulations will now be subject to review every three years, rather than an annual review. Furthermore, SAMLA will prevent designated persons from challenging regulations before the Courts. They must instead request either a variation or revocation of the designation from the Secretary of State. 

Another controversial feature is that SAMLA allows designation by "description" as well as simply by name. This will undoubtedly create a difficulty for anyone trying to ensure compliance with the regime in identifying those meeting a description. 

In response to the enactment, The Russian Embassy has made the following comments: "SAMLA provides the British cabinet ministers with extraordinary powers to designate persons as sanctions targets without court's verdicts, based only on a minister's belief there is "a good reason" for that. As far as we know it caused many concerns in the UK itself that such powers might undermine democratic norms and principles"

In conclusion; the principles of the post-Brexit regime have been set out by SAMLA, but we expect political priorities will indeed define the way in which this operates in practice. 

Should you have any queries about matters raised in this article, please do not hesitate to contact email me: contact@crimelawyer.co.uk

 

 

The Right to be Forgotten

The Right to be Forgotten

Redemption has always been an important part of our justice system; you do the crime, you do time. Once your debt is paid, you should then be free to start again, without forever being haunted by ghosts of the past.

We all recognise that there must be limits to this principle, so if convicted of murder or rape, you are unlikely ever to be able to expunge the past. But for relatively minor offending, or offending so far in the past to render it irrelevant, one might expect that you could move on.

Before the internet age, moving on was possible, local news was soon forgotten, or people could move away and start again. But now, with the growth of online news and the ability of almost anyone able to publish almost anything, the picture is different. Powerful search engines such as Google ensure that if the information is out there, there is a method of finding it.

So, to counteract this, people now speak of a 'right to be forgotten', and this is where data protection laws are being utilised.

This ‘right to be forgotten’ is not a new concept introduced under data protection laws. The principle was long-ago recognised by the UK Parliament with the Rehabilitation of Offenders Act 1974. That Act provides that after a specified period of time (which varies according to the sentence that was imposed) a person's previous convictions are regarded as having been "spent". The underlying rationale is that, for all but the most serious offences, people should not have a lifelong "blot" on their record but should be able to live without that shadow, and the consequences it may have for their employment or other areas of their life. So, the principle of a "right to be forgotten" was recognised in domestic law many years ago, and long before data protection laws came along. Its emergence in the field of data protection simply reflects the significant development in the dissemination of information represented by the Internet.

What does the law say?

As a result of the harmonisation of data protection laws across the EU, the European Court of Justice has jurisdiction to determine issues arising from data protection cases. Courts of the member states of the EU can refer cases to the ECJ for rulings as to the interpretation of the law. One such case – Google Spain SL –v- Agencia Espanol de Proteccion de Datos (AEPD) (Case C-131/12, 13 May 2014) [2014] QB 1022 - has become fairly well-known and has been the subject of public debate. It is colloquially known as the Google Spain case. It is the case that first really brought to prominence the notion of a "right to be forgotten".

Put very simply, the case decided that, after a period of time, certain information about a person (although it may have been accurate many years ago, and may remain so) should not continue to be made available to the public in Internet search results because to do so would infringe the data protection rights of the individual concerned. The right was not absolute. It could be outweighed by other considerations. The Court explained:

"It must be pointed out at the outset that....processing of personal data, such as that at issue in the main proceedings, carried out by the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual's name, since that processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty — and thereby to establish a more or less detailed profile of him. Furthermore, the effect of the interference with those rights of the data subject is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such a list of results ubiquitous.

In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject's fundamental rights... Whilst it is true that the data subject's rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject's private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life."

This principle sharply divides public opinion. Concern has been expressed that the right to be forgotten could be misused and might lead, in effect, to censorship of the information that is available on the Internet. Criminal cases are invariably conducted in public. Information relating to people who are convicted of criminal offences may well end up on the 'public record', most frequently as a result of newspaper reports of cases that appear in the Courts. Those opposed to the "right to be forgotten" contend that access to this sort of information should not be prevented by restrictions placed on what can appear in the results of Internet search engines.

This is another area of the law in which two human rights come into conflict; the right to be forgotten is a dimension of the right to privacy and it conflicts with the right of freedom of expression (which includes the right to receive as well as to impart information). When disputes like this arise, it is ultimately for the Court to decide where the balance is to be struck in an individual case.

What about the UK Courts?

The High Court is soon to decide this issue so far as the UK is concerned.

The Claimants in two cases before the Court (to be heard in February and March 2018) are both individuals (neither is a 'celebrity' or politician) who have previously been convicted of criminal offences, but both have now been "rehabilitated" under the Rehabilitation of Offenders Act 1974. One was convicted in the late 90's of conspiracy to account falsely. Over ten years ago, the other was convicted of conspiracy to intercept communications. Both complain in their respective claims that Google is continuing to return, in response to searches of their names, links to information about their respective convictions. Some of the links that are complained about are links to newspaper articles reporting the original criminal proceedings. The Claimants argue that the time has come for them to be entitled to have these entries removed from searches carried out on Google.

What is the High Court likely to say on this issue?

We simply don't know for sure, but most commentators think that earlier EU decisions are likely to be adopted. But, whichever way the case goes, it is likely, ultimately, to end up before the Supreme Court, so it may be a year or so before we have any clarity.

To discuss any issues raised by this article, please contact me on +447766001774 or email me on contact@crimelawyer.co.uk