Criminal records that net the innocent

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Criminal records: safeguarding the innocent.

The British government will form a new body, the Disclosure and Barring Service, to provide a barring and criminal records service from December, 2012. No doubt, just as with the present Criminal Records Bureau (CRB), it will draw conviction information from the Police National Computer (PNC), which holds a record of anyone who has been arrested, convicted, cautioned, reprimanded or warned in respect of a recordable offence (being all offences punishable by imprisonment at least one year plus a number of other minor offences including begging or drunkenness in a public place). Around 10 million records are held on the PNC, the information is stored for 100 years from the date of birth of the person the information relates to, and over 32 million checks have been made since CRB's inception, with 4.07 million in 2011/12 alone. Unfortunately, from 2004 to 2010, some 15,000 people were incorrectly labelled as criminals and sex offenders because of flawed CRB checks, with all the social stigma and difficulty finding employment such labelling entails. Lord Taylor of Holbeach, the minister responsible for criminal record policy, seems to suggest this is a price the innocent must pay. He told us, "The CRB's accuracy rate, i.e. the check related back to the right individual, is 99.99%" and confirmed that the information held by the CRB can be challenged.

Supplemented by overseas data

However, the data the PNC hold are supplemented by criminal conviction information from outside the UK. The United Kingdom Central Authority for the Exchange of Criminal Records (UKCA-ECR) obtains such information from European Union member states, whereas the Non-European Union Exchange of Criminal Records team (NEU-ECR) of the Association of Chief Police Officers (ACPO) has responsibility, on behalf of the Serious and Organised Crime Agency (SOCA) to exchange criminal records with Interpol countries. It is the International Development portfolio of ACPO that works to “obtain accurate and reliable criminal conviction information from countries outside of the UK and make that information available to police and other public protection agencies”.

Equivalent legal effects

It is extremely important that the criminal conviction information from countries outside the UK is 'accurate and reliable' because among other things, under Schedule 17 of the Coroners and Justice Act 2009, a “previous conviction of an offence under the law of any country outside England and Wales can be admitted as ['bad character'] evidence to the same extent as a previous conviction in England and Wales. Furthermore, under Schedule 17 of the Act, an EU conviction will be taken into account in relation to both bail and sentencing in England and Wales to the extent that domestic convictions are, and that equivalent legal effects are attached to them as to domestic convictions”(Better Trials Unit, Ministry of Justice, Circular 2010/12). Today, it is of course important that crime is tackled on a global scale, while at the same time ensuring criminal records systems strike the right balance between respecting civil liberties and protecting the public. Thus, care must be taken that undue legitimacy is not given to certain overseas convictions causing unjust consequences for the convicted, yet innocent.

Better understanding of legal, criminal justice, cultural and human rights issues ACPO has informed OpenTrial that “The NEU-ECR team look at best practice and work with other bodies, including the Home Office to inform future policies and procedures. ACPO is also working to develop a better understanding of legal, criminal justice, cultural and human rights issues in other countries to insure that exchanging information is safe and beneficial” ('safe and beneficial' is undefined by ACPO). This suggests that, because of an incomplete “understanding of legal, criminal justice, cultural and human rights issues in other countries”, the information received by ACPO from some countries may not be “safe and beneficial”.

Unrealistic presumptions

Indeed, it is widely accepted that the legal systems in many overseas countries are corrupt and dysfunctional. Numerous UN, Amnesty International, Transparency International and regional development bank reports confirm this. Despite this, the unrealistic assumption is made by the justice sector in this country that standards of justice are equal across the EU. Of even greater concern is that, Interpol Senior Counsel, Yaron Gottlieb, tells OpenTrial there is “a presumption that the information provided by the police [in the 190 Interpol member countries] is accurate and relevant.” Yet, according to Transparency International, globally “The police are the institution most often reported as the recipient of bribes ... From accepting kickbacks to providing cover to organised crime, police corruption comes in many forms." Indeed, even Interpol chiefs in countries such as Panama, Peru, Mexico, Ecuador and Bolivia have over the years themselves been implicated in serious crime. This needs to be borne in mind as, according to ACPO, “the information we receive is sent to us either from agencies within the other EU member states, or from police organisations across the world under the Interpol arrangements.”

Unfiltered data a danger

OpenTrial's concern is that despite the above, ACPO confesses that it does not have a policy in relation to the sifting through of data to ensure they are safe and beneficial. This becomes an even greater concern when one takes into account that Interpol, because of the legal immunity it enjoys, cannot be held accountable for the data it produces and disseminates, and may, therefore, be less concerned than it ought to be that the data it provides to ACPO are “safe and beneficial”. ACPO, on the other hand, in holding data, is accountable under data protection, human rights and defamation law in the UK.

Rule of law and fair trial criteria

The only realistic way of ensuring the data are “safe and beneficial”, is to take into consideration the level of compliance with the rule of law and fair trial criteria in each country data are accepted from. We realise this is a challenging task; but one that is essential if the innocent are to be protected, and is, quite propitiously, likely to involve raising standards of justice around the world, particularly in countries where there is a high incidence of certain types of offences committed by Britons. Disappointingly, however, Lord Taylor of Holbeach says, "we are not convinced that problems arising from the storage of criminal convictions received by UK citizens abroad are sufficient to require the UK to carry out a review of the compliance with the rule of law and fair trial criteria in each country from which the UK accepts criminal convictions." Thus, despite William Blackstone's dictum - "Better that ten guilty persons escape than that one suffer" - which is the basis of the 'presumption of innocence' and fundamental to the fair trial, for now at least, the innocent will in fact continue to suffer.

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