Police powers: common law and disclosing information

28 August 2015

The Home Office has issued new guidance for employers and regulatory bodies in relation to disclosure of convictions and other information for individuals subject to criminal investigation and proceedings. Common Law Police Disclosure (CLPD) ensures that where there is a public protection risk, the police will pass information to the employer or regulatory body to allow them to act swiftly to mitigate any danger.

CLPD replaces the Notifiable Occupations Scheme (NOS) and focuses on providing timely and relevant information which might indicate a public protection risk. Importantly, information is passed on at charge or arrest rather than on conviction, which may be some time after. Shamsun Nahar examines the guidance and comments on the practical implications of the changes.

Common law powers enable the police to disclose selected information concerning an individual. Such disclosure is anticipated to enable a third party to consider risk alleviation measures in respect of an employment or voluntary role assumed to be undertaken by that individual. Essentially, this means that the police will use their professional judgement to make common law based disclosures in situations where they believe this to be necessary to promote public protection. This will be prompted when a serious and urgent risk is identified which requires a pressing social need to be addressed. Sexual offences are likely to be disclosable.

Any decision to release police information will need to balance the rights and welfares of the individual against those of the public in general or any specific member or members of the public. This should include contemplating the impact of disclosure on the private life of the individual involved, whilst taking into account any adverse effect disclosure might have on the avoidance or detection of crime.

As mentioned above, one of the significant changes is that information is passed on at charge or arrest rather than on conviction. The consequences of this are obvious. The individual might be acquitted at trial, or the matter discontinued after further investigation. For many, the damage caused by disclosure to their employer will be difficult to reverse. A further central change is the removal of a predetermined set of regulatory bodies and licensing authorities. The fact that the police “will address the risk of harm” regardless of the employer or regulatory body is somewhat unnerving. In this regard, individuals will be at the mercy of police judgement. 

The Home Office argues that the new scheme provides robust safeguarding arrangements while ensuring only relevant information is passed on to employers. It suggests that the scheme strikes the right balance between the interests of the individual and the importance of public protection. It remains to be seen whether this equilibrium can be achieved fairly.

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