Criminal Records (Public Access) Bill
(13 years, 6 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
Mr Christopher Chope (Christchurch) (Con)
I beg to move, That the Bill be read a Second Time.
This Bill is similar to my previous Bill in that it comprises just one substantive clause, but it also has a financial provision and it would need to have a money resolution. The Bill arises from what has been accepted for a long time as a big anomaly in public access to court records, particularly magistrates court records. It is most effectively summarised in the Information Tribunal decision EA/2009/0037 in the case of John Carleton and the Information Commissioner on 24 August 2009.
The tribunal looked at the issue of somebody who wished to get access to the record of a conviction in a magistrates court. Because that person was not present at the court hearing, and because the press did not cover the matter and report it, it was not possible for that person to get information from the magistrates court without getting specific permission from the court. In order to do that, they needed to write to the court manager detailing the request and asking for an appointment at court to make a formal request to a justice of the peace. They were able to get that application granted only if they could show that it was in the public interest for them to be able to access that information. The court decided that, although the conviction was on the public record, it was not publicly accessible because of data protection legislation. The relevant paragraphs of the decision read as follows:
“34. The Tribunal notes that there are apparently anomalies created by the current Freedom of Information and Data Protection legislation in this area and which are mentioned briefly below.
35. If the Appellant, as a member of the public, had attended the court on the relevant date there is no reason to suppose that he would not have been able to hear all the information that he was requesting because it would have been part of the normal, public court proceedings.
36. If the Appellant had found out that the press or the media had covered the case and was able to get a copy of the newspaper report or media broadcast then – although the personal data in question would have been processed by becoming part of those reports – the Appellant would have had legitimate access to the information and the personal data he was seeking.
37. If the local newspaper or media outlet put the court report within a webpage on the internet or as a ‘podcast’ to be downloaded by the Appellant – whether there was a ‘search’ facility on the site allowing specific names or topics to be highlighted and retrieved or not - and then viewed, printed out, played or stored, then all of that is legitimate processing of personal data within the current statutory legislation.
38. However he did not attend the Magistrates Court on the day in question and he was seeking the personal data in relation to the individual – from the court itself - after the event.
39. That situation is not permitted in the Magistrates’ Court by the current Statutory regimes save through the filtering situation incorporating permission to inspect the Court Register made in person on application to a Justice of the Peace.
40. It may well be that the Ministry of Justice wish to draw this appeal, the Good Practice highlighted by the Information Commissioner – and these remarks – to the attention of HMCS’s Justices’ Clerks and Legal Managers because it is unlikely that this Appellant’s request is the only one of its kind received by the Magistrates’ Courts throughout England and Wales.”
Only yesterday, Keir Starmer, the Director of Public Prosecutions, was reported in the newspapers as saying:
“I believe that transparency and visibility help the public understand how the criminal justice system works, and shining a light on the workings of the courtroom can only serve to boost its efficiency and effectiveness.”
He was actually speaking in support of a proposal to allow cameras into courts across the country, which is far beyond what I am talking about in this Bill.
This Bill would mean that if somebody was convicted in a magistrates court and that conviction was recorded by that court, as it has to be under a statutory duty, it should be possible for anybody to get access to that information because it is public information and it should be publicly available. At the moment, the only way somebody can get access to that information is by carrying out a criminal records office check. They can do that only if they know a police officer who is prepared to carry out the check, unofficially, on their behalf, with or without a fee, or if they belong to an organisation that can get access to the criminal records office’s information.
The trouble is that the criminal records office’s information goes far beyond just the details of convictions. It includes a lot of prejudicial information, such as details of who has been arrested and not charged, who has been charged and then acquitted in court, and even who has been the subject of suspicion. Such information is all included in the records of the criminal records office. I am not suggesting that people should be able to get easy access to that information, but I am suggesting that they should be able to find out much more easily whether somebody has been convicted in a magistrates court of drinking and driving.
I give that example because if the Government insist on reversing the House of Lords amendment to the Police Reform and Social Responsibility Bill, it will not be long before this House is enabling people to be elected as police and crime commissioners and that Bill says that it will not be possible for anyone to stand for election to that post if they have a previous conviction, which could include a conviction for a drink-drive offence. Why, therefore, should this information in the magistrates courts not be available? It is already available, but it is not available to everyone and it is not available easily. That is why this Bill is described as a means to facilitate public access to court registers.
Mr David Nuttall (Bury North) (Con)
Can my hon. Friend confirm that it would be very easy and, indeed, desirable to ensure that this information contained the record of convictions in not only magistrates courts but the Crown courts?
Mr Chope
Yes, it would. Of course there are far fewer Crown court convictions and far fewer Crown courts, so it is much easier to get access to that information. As my hon. Friend will have noticed, the Bill states that
“‘a criminal records office’ means the Criminal Records Bureau or any successor body with similar statutory functions to the Criminal Records Bureau”.
It also states:
“A criminal records office must keep, in electronic form, copies of all Magistrates’ Courts Registers, and any other registers produced by a court listing convictions”.
Obviously, that could include Crown court registers.
In drafting this Bill, I have tried to make the regulation and the demands placed on the criminal records office as light as possible. I have done so by, among other things, saying that none of this would have to be retrospective, and so only after the Bill was enacted would the magistrates courts’ registers have to be communicated in electronic form to the criminal records office. There would be no burden on the criminal records office to collate the information on all those records. All that would happen would be that the records would be available in electronic form and could be investigated on the internet by members of the public.
I expect what would happen—this has already been happening in the US—is that people who were interested in providing a public service would start to collate the records themselves, thereby producing a combined database that would be accessible, perhaps for a fee, by members of the public. It would set up almost a private sector alternative to the Criminal Records Bureau.
Henry Smith (Crawley) (Con)
Many people will be quite astonished that records of convictions are not as publicly available as they should be, I would argue, in a free society such as ours. Does my hon. Friend think that this provision would make the Criminal Records Bureau a little more efficient? If people had direct information about those who have been convicted, it might free up some of the bureaucratic burden for which that organisation is, unfortunately, somewhat infamous.
Mr Chope
I hear what my hon. Friend says. I have not recently had any constituency cases relating to the Criminal Records Bureau, but there is a real problem with the time it takes to get information out of it, particularly if one wants to check records for potential volunteers or members of staff.
Stephen Phillips (Sleaford and North Hykeham) (Con)
A moment ago, my hon. Friend suggested that the electronic record the Bill seeks to create would be capable of being investigated by the public on the internet. Can he direct the House to the clause that mandates that to be the case?
Mr Chope
Clause 1(1) of the Bill states
“and must make them accessible to the public”.
As they are going to be in electronic form, I had assumed that that would be the means by which they would be made accessible to the public. If my hon. and learned Friend is suggesting that he does not think that that is spelt out clearly enough, I would obviously be happy to consider those representations. The idea behind the Bill is that such information would be accessible without someone having physically to go along to the criminal records office. Ultimately, it would be for the criminal records office to decide under the terms of the Bill in what way it would make the records accessible to the public.
The point is quite short and simple. It comes down to the basic principle that if somebody is convicted in a court, that knowledge should be publicly available and easily accessed by the public. At the moment, much to the surprise of many of us, unless one is actually in the court and hears what is happening or reads about it in the newspapers, it might go undetected and might be hard to detect in the future.
To pick up on the point made by my hon. Friend the Member for Crawley (Henry Smith), a number of employers might in due course want to see whether somebody who is applying for a job has a conviction from the local magistrates court. The Bill would facilitate their being able to do that without their having to engineer a situation in which they could get a CRB check on that individual.
The significance of the Bill will become greater as we find that fewer and fewer proceedings in the magistrates courts are covered by local newspapers. I am fortunate to have the New Milton Advertiser and Lymington Times, which take delight in printing at length reports from the magistrates courts. That is relatively unusual in local newspapers these days, so if people cannot find out what is happening through their local newspapers there must be an alternative way of enabling them to get that knowledge. That is what the Bill is all about.
Clive Efford (Eltham) (Lab)
I shall be as brief as the Bill, which contains only a few clauses. The hon. Member for Christchurch (Mr Chope) has pointed out the anomaly that if someone is present in a court or reads a court report, its decisions are a matter of public record but that as time passes the case becomes subject to freedom of information provisions. He made it clear that the intention of the Bill is that such information should be available online. I was wondering about that, because it occurred to me that if we wanted to find out about an individual, we would have to happen across the particular magistrates court that held their record. However, he suggests that he would amend the Bill to clarify that point.
I am not sure that the Bill is consistent with our debates in Committee on the Protection of Freedoms Bill. The hon. Gentleman may not be aware that there was considerable debate about returning information supplied for Criminal Records Bureau checks to the individual so that they could check its accuracy before it was passed to a potential employer or a voluntary organisation. The hon. Gentleman’s Bill does not seem consistent with the Government’s direction of travel in that regard.
Clive Efford
I accept that point, and I shall speak briefly about accuracy of information in a moment.
Before the debate I checked the internet, as I was concerned about some of the fee-charging organisations that purport to provide information about criminal record checks. There seemed to be no way to check the background of such organisations to find out whether they were sound and operated reliable processes. A job applicant might find that an employer uses such services and that the information is inaccurate. That is a matter of concern, and is something that the hon. Gentleman has highlighted—yet, the Bill would not deal with it.
There have been cases when information from magistrates courts has been called into question. Between 1980 and 2006, there was a substantial incident in Leeds when more than 2,000 cases were not recorded accurately at a magistrates court and a number of people avoided sentences and fines. It was thus not possible to check their records at a later date. One of the reasons given for that failure was the amount of bureaucracy and the burden it placed on magistrates courts, so we should want to consider the implications of the Bill for magistrates courts before we might support it.
We have no objection in principle to the hon. Gentleman’s desire to share information that is already in the public domain. The force of the logic in his argument is on record, but at this stage he has failed to convince us that the Bill would solve the problems and that it would not have unintended consequences. We will be interested to hear the Government’s response to his contribution.
Mr David Nuttall (Bury North) (Con)
I thank the hon. Member for Eltham (Clive Efford). It is always a pleasure to follow him in debate. His principal objection seemed to be the possibility that the register might be inaccurate. It seems to me that the first thing that any hon. Member or member of the public would do is to check the accuracy of their record, and anyone should be able to do so. In the vast majority of cases, the information would be accurate. It is difficult to understand how a mistake could be made, although they are always possible.
Stephen Phillips
As someone who sits routinely in the Crown court as a recorder, I can assure my hon. Friend that there are often mistakes in the antecedents sheets that are forthcoming from magistrates courts, that that causes an enormous problem for those who sit in the Crown court, and that that is perhaps one of the flaws of the Bill. Given that potential inaccuracy and the potential for blackening people’s names, does he not therefore think that the Bill needs looking at again before receiving its Second Reading?
Mr Nuttall
I hear what my hon. and learned Friend says, but I am not convinced that he gives a reason for looking again at the Bill. It might be a good reason to look again at how magistrates courts record and deal with information that they give out. The problem seems to lie with magistrates courts, not with the Bill. We ought to ensure that magistrates courts accurately record their convictions. It is not rocket science. Good grief, all they have to do is write down what sentence has been given against someone’s name. It is difficult to understand how so many mistakes can occur.
I accept what my hon. and learned Friend says from his personal experience: mistakes have occurred, which is highly regrettable, but the problem does not lie in the Bill. In fact, the Bill is a major step forward in providing openness and transparency in the field of justice. Justice must not only be done; it must be seen to be done. My hon. Friend the Member for Christchurch (Mr Chope) referred in his opening remarks to a case where someone was not in court when the judgment was read out. I dare say that often nowadays, especially since the reduction in the number of local newspaper court reporters, a judgment is read out but no one else is in court. Whoever gets to hear about it?
I am pleased to be named as a sponsor of the Bill, along with my right hon. Friend the Member for East Yorkshire (Mr Knight) and my hon. Friends the Members for Wellingborough (Mr Bone), for Shipley (Philip Davies), for Kettering (Mr Hollobone) and for Witham (Priti Patel), because it has many benefits that will enable members of the public easily to ascertain whether another person has been convicted of a criminal offence. There are many reasons why someone might wish to do so.
Of course, in some professions, CRB checks are required by law. In many cases, enhanced CRB checks are required. A lot of employers, particularly small ones, might want to check whether prospective employees who say that they have no criminal convictions are telling the truth. The Bill is a simple, straightforward way to enable that to take place. It is necessary to check the criminal background not just of those who work with children, teachers, social workers and those who deal with vulnerable adults, but of those who deal with money in the financial—
The Minister for Equalities (Lynne Featherstone)
Does not the hon. Gentleman see some conflict between the Rehabilitation of Offenders Act 1974 and the ability to check on everybody?
Mr Nuttall
I will come to the contents of the register later, but briefly, with modern technology it would be easy for records that are spent under the Rehabilitation of Offenders Act to be so marked on the register. That could be done quite easily. I do not see why that could not take place.
Material that is secret would not suddenly be put in the public domain. The Bill would make available information that is already in the public domain. I see no argument why it should not be more widely available in an easily accessible format. I can see many benefits to a register on which members of the public could see not just the date and nature of the offence and the sentence that was handed down, but whether, for example, an offender had been ordered to wear an electronic tag. If a fine had been imposed, the public would be keen to see whether it had been paid, or whether only some of it had been paid. If an order had been made for someone to serve a certain number of hours of community work—a community sentence order—had they worked those hours? Had the whole of the sentence been completed? Had a criminal who had been sentenced to a term of imprisonment served the entire length of the term or, more likely, been released early? The public would want to see how much of the sentence the criminal had served. That would enable them to determine for themselves whether sentences were lenient or not.
Lynne Featherstone
Is the hon. Gentleman aware that the things that he is raising which the public might want to see on the register would not be recorded on the register? They are not matters for the register. A sentence would be registered as imposed, but not as served.
Mr Nuttall
I agree with the Minister. I made the point at the outset that in due course I would like to see the legislation go further. It would be widely welcomed by the public if further information could be made available in the future. It would add to the transparency agenda, which I know the Government are keen on pursuing.
One side effect of such a Bill, which is not intended to be a crime reduction measure, is that if people knew that their neighbours could easily turn on their computer and check whether someone had been convicted of a criminal offence, that might have the effect of reducing crime in this country.
Mr Greg Knight (East Yorkshire) (Con)
Might not the Bill have the opposite effect? If the residents of a street discovered that one resident had a criminal record, they might decide to try to hound him out of the area by threatening and abusive behaviour.
Mr Nuttall
That information is already public. We are all aware from our own communities that people will often know whether someone living in their area is constantly visited by the police or has had spells in prison. I hear what my right hon. Friend says, but the provisions would be no more likely to cause an increase in attacks on individuals than is the case at present as a result of the information being in the public domain.
Mr Knight
I was only pontificating that it might lead in some circumstances to an incident or incidents, but it is clear from the Bill that public knowledge of those who have convictions is likely to increase. Indeed, it is not beyond the realms of possibility that if the Bill became law, someone might develop an iPhone app, for example, that would show how many people in the neighbourhood had convictions.
Mr Nuttall
My right hon. Friend raises an interesting point, which fits neatly with my point about available technology and the sort of database that could be created. It is quite likely that a private sector organisation could put such information into a searchable database on the internet, which, as my right hon. Friend rightly says, could easily be accessed on a mobile phone. That is the way in which the internet is going. It is more and more likely that people will carry their own personal computers around with them—tablets are already available —and if a search can be made on a desktop computer in an office, it can be made as one walks down the street. I see no reason why that should not be the case. I cannot see the problems with that.
The main point is that the information must be accurate. We already have the technology to make that happen; of that there can be no doubt. We have already seen the excellent Home Office website that enables individual householders to search right down to street level to find the number and category of crimes committed in their area. Having seen how complicated that website is, covering every road and street in the entire country, I think that the proposed database would be much easier to construct. Provided that measures were in place to ensure that the information on the register was accurate, which could be done easily by ensuring that people could check their own record free of charge, I see no reason why—
Henry Smith
Does the Bill not merely extend information that is increasingly becoming publicly available, as my hon. Friend is setting out? In the Sussex police force area, the recently passed Sarah’s law allows people to check whether anyone in their neighbourhood has been convicted of a child sex offence. That has empowered people, and certainly has not led to any vigilantism.
Mr Nuttall
My hon. Friend makes an excellent point. Generally speaking, people can be relied on to treat this information, which is publicly available, with common sense and reasonableness.
One area where problems are likely to occur is when people change their name. I know that what we can do to prevent people from giving false names is of particular concern to the Home Office, because there is no law that prevents someone from changing their name. A name can be changed simply by statutory declaration, rather than by going through the complexity of doing so by deed poll. No one has to give a reason for wanting to change their name. In fact, many people do so for the slightest of reasons, perhaps because they do not like their name. I am not normally the first to suggest further regulation, but I wonder whether the need to monitor sex offenders, in particular, might result in some further control, to ensure that those convicted of sex offences are not free simply to change their name and walk away from their past.
This short Bill would be warmly and widely welcomed outside this House. I wish it well on Second Reading and look forward to seeing it on the statute book before too long.
Stephen Phillips (Sleaford and North Hykeham) (Con)
Having heard the debate on Second Reading, I intend to make only some brief remarks.
I congratulate my hon. Friend the Member for Christchurch (Mr Chope) and the Bill’s supporters. The Bill seeks to deal with an anomaly: that there is no mechanism by which a member of the public can secure access to information on the previous convictions of individuals in the magistrates court, which, as other hon. Members have said, is in the public domain. I will not lend the Bill my support on Second Reading for a number of reasons, which I shall briefly identify.
The first reason, already adverted to by the Minister in her intervention on my hon. Friend, is that the Bill, as drafted, is inconsistent with legislation on the rehabilitation of offenders and with the way in which this House and the other place have dealt with the rehabilitation of offenders. I am sure all Members agree that the rehabilitation of offenders is greatly to be desired so that the criminal justice system does not again have to deal with those who, particularly in their youth, have felt its tentacles reach out to them.
Young men, and no doubt some young women, can make mistakes early in life and find themselves in the magistrates courts, quite properly, for criminal offences they have committed. For those who subsequently amend their ways, as the vast majority do, and participate fully in society, it would be a great shame if their early misdemeanours were to follow them for ever. We have legislation on the rehabilitation of offenders to ensure that early offences do not follow them around. One of the great problems with the Bill, notwithstanding the mischief that I accept exists, with which it seeks to deal, is that is does not grapple with that dichotomy.
Stephen Phillips
My hon. Friend is right, but access to a spent conviction can be gained only where Parliament believes that there should continue to be access to spent convictions to prevent harm that might arise were the convictions not to be apparent to those making criminal records checks. The Bill would go much further and make generally available to the public the entire criminal record of those who might well have mended their ways many years before. That is the first problem with the Bill.
Mr Nuttall
Does my hon. and learned Friend accept that, with existing technology, it would be easy, under the Rehabilitation of Offenders Act, to tag an entry on the register with a conviction’s expiry date?
Stephen Phillips
The hon. Gentleman might be right, but his difficulty is that the Bill does not propound the technological solution that, he advises the House, might be applied. He is therefore saying that the Bill, which he supports, is defective and should not receive a Second Reading.
The Bill’s second problem, to which I have already adverted, is the scope for inaccuracy in antecedent conviction records from magistrates courts. My hon. Friend the Member for Christchurch was kind enough to say that this is a matter on which I know something, and I flatter myself that that is indeed the case. The simple position is that not all magistrates court records are of the quality that one would wish, either because they lack information or because they refer to the wrong individual.
The keeping of magistrates court records is an undoubted problem. The Minister might need to look at properly funding courts to ensure that records are accurate, but until the problem is properly grappled with, the Bill will continue to suffer from the defect that records that were inaccurate in part or in whole could follow individuals around for their entire life. Nothing would be worse than a member of the public, unbeknown to them, having associated with them a criminal conviction for an offence they had not committed.
The third major problem with the Bill is that, as my hon. Friend the Member for Christchurch said in moving its Second Reading, it is intended to be only prospective; if enacted, it would apply only to offences committed in the future. His principal aim is to ensure that the burden on magistrates courts does not become too great, but the difficulty is that if the Bill was enacted those already convicted of offences in magistrates courts would form one class of person whose criminal records were not following them around—notwithstanding the mischief that my hon. Friend seeks to address, because the information or data were at one stage in the public domain —whereas the criminal convictions of those who committed offences in future could follow them around.
For all those reasons, although my hon. Friend and the sponsors of the Bill have a very fair point and have quite properly alluded to an anomaly—the public’s inability to secure access to the records—it seems that the Bill is defective in any number of respects.
Stephen Phillips
My hon. Friend asks an interesting question. The short answer—I will be completely honest with him—is that I do not know, because I have not thought about it. I am seeking to point out the Bill’s defects and why it will therefore not secure my support on Second Reading. The solution can no doubt be taken up by Ministers in due course. I none the less consider the points I have made to be valid, so I urge the House not to give the Bill a Second Reading.
The Parliamentary Under-Secretary of State for the Home Department (Lynne Featherstone)
I am grateful to my hon. Friend the Member for Christchurch (Mr Chope) for giving me this opportunity to talk about his private Member’s Bill. I will, if I may, set out how the current system works and our concerns about the Bill as drafted.
The Bill seeks to set up a system under which details of all court convictions will be held by the Criminal Records Bureau, and access to those records will then be available to the general public. This involves several issues, which I will tackle one at a time. First, the Bill would require court conviction details to by held by the CRB. The CRB was established in 2002 and acts as a one-stop shop for organisations checking police records and, in relevant cases, information held by the Independent Safeguarding Authority. It is important to understand the purpose of the criminal records checking system and why there are so many careful considerations about what information the CRB may hold and issue compared with the proposed system, which would be open and accessible in every detail to everyone in this country.
At the moment, two levels of CRB check are available: standard and enhanced disclosures. Both contain conviction information taken from the police national computer, with enhanced disclosure also involving a check of local police records for relevant and proportionate information —local police intelligence is sometimes termed “soft” information. A standard certificate can be obtained if two criteria are fulfilled: first, that the position under consideration falls within the exceptions order to the Rehabilitation of Offenders Act 1974; and, secondly, that it has been prescribed under Police Act 1997 regulations as a “prescribed purpose”. That is why I intervened on my hon. Friend to question whether there was an inconsistency between the Rehabilitation of Offenders Act and the laudable desires expressed in his Bill, which perhaps cannot be translated into reality by these means.
An enhanced certificate with barred list information can be obtained if three criteria are fulfilled: that the application falls within the exceptions order; that it is for a prescribed purpose; and that it relates to a position for which suitability information, including barred list information, can be obtained, as also set out in Police Act regulations. At the moment, there are several positions for which barred list information can be given on an enhanced CRB disclosure, including, for children’s barred list information, positions relating to regulated activity in relation to children, other care and supervision for children, fostering and child minding; and, for adults’ barred list information, positions relating to regulated activity in relation to vulnerable adults, registered social care agencies and the Commissioner for Older People in Wales. I am sure my hon. Friend is aware that the Protection of Freedoms Bill is in Committee, where changes to these arrangements are being discussed. There is a further level of check—basic—that has yet to be introduced in England and Wales.
My hon. Friend the Member for Christchurch mentioned the timeliness of CRB checks. In April 2011, consequent on changes to the recording and holding of information by the police, the CRB issued 95.1% of enhanced certificates within 28 days; the figure for March was 95.4%. That is a vast improvement on which it is to be congratulated. Demand for CRB checks has increased year on year and they are now in the millions each year. That improvement is an impressive result.
CRB checks are mainly used for those working with children or vulnerable adults, but they are undertaken for a wide range of other purposes, such as licensing and in respect of people in positions of trust. In addition to the certificates, individuals can make a subject access request if they wish to find out what information is held about them by individual police forces.
The CRB operates under the provisions of part V of the Police Act. To achieve what my hon. Friend suggests in the Bill would require amendments to the legislation. The Bill therefore would not work as it stands.
The Bill would allow anyone to access court records from any court in England or Wales. We rightly have open justice whereby anyone can go into any court to observe what is happening, with a few exceptions involving families and children. The Bill proposes a fundamental change to that access.
Lynne Featherstone
I think that there is differential access; information can be obtained by someone who is present on the day of proceedings or if they read about it in the newspapers. The anomaly, as I see it, is about how much information is available to whom, when and in what fashion. What monitor is available to protect those on whom information is held from people who are not acting in the public interest? That is the test at the moment. Anyone can seek information from a court: the test is whether it is in the public interest. That is a matter for a further debate.
What is being suggested would add to the functions of the CRB by requiring it to keep a central database of all court outcomes, or results as they are known in the trade. We have never had such a database. Under the current system, people can visit their local court or any other court and read the results of court hearings in the local and national press. Newspapers and other media outlets can obtain free of charge copies of court registers containing the outcomes of criminal cases and the details of upcoming cases. As I have said, we do have an open system of justice.
If we went down the road proposed in the Bill, where would it lead? First, there is the question of cost. I need hardly explain to my hon. Friend the Member for Christchurch that the Government are reducing the deficit. All Departments are working hard to reduce their costs, and introducing a new system such as this would incur substantial costs.
Further, what real mischief is the Bill designed to remedy? What benefit would be achieved from setting up such a system? How would it benefit our communities? It appears to us that the aim is to make the justice process more transparent, by allowing anyone, anywhere in England and Wales, to find out about convictions in any court, but why would we need to do that when we already have an open justice system? The Criminal Procedure Rules 2010 state, in paragraph (15) of rule 5.4, that every court register
“shall be open to inspection during reasonable hours by any justice of the peace, or any person authorised in that behalf by a justice of the peace or the Lord Chancellor.”
As court registers contain personal information that would not be made available in court or elsewhere, the change that my hon. Friend suggests would not simply be a matter of transferring the information to the Criminal Records Bureau. Magistrates courts registers are held not by the CRB but by Her Majesty’s Courts and Tribunals Service. Recordable offences—not all offences—are passed electronically from HMCTS to the police national computer, from which the CRB accesses them. Making magistrates courts’ registers available to the CRB would therefore require a process to transfer and store them, with the associated costs.
There is considerable information kept on magistrates courts registers that is not in the public domain. It includes, among many other things, details of individuals’ driving licence numbers, personal details of the recipients of compensation and details of vulnerable victims and witnesses, including those in sexual and domestic violence cases. Court registers also contain much information on people found not guilty or acquitted. Does my hon. Friend think that should be in the public domain, too? If not, as I assume, we would need to find a way of removing that information—again, at considerable cost and contrary to the provisions of the Bill.
Magistrates courts registers also include cases on which there are reporting restrictions in place to stop the naming of individuals—offenders, witnesses, victims or others. Those cases would need to be identified—another costly process, as they are recorded only at first hearing so a linking process would have be identified—and removed from the public register. The Bill does not allow for that, either.
Magistrates courts also hear some civil and family cases, details of which are recorded in the register. Those cases would need to be filtered out before publication, but the Bill does not allow for that. Proceedings on more serious crimes are concluded in the Crown court, and from reading the Bill it seems that they, too, are to be included in its provisions. Clause 1(1) refers to
“any other registers produced by a court listing convictions”,
not just those from magistrates courts. Crown court registers are not currently held electronically. The official record is on paper, and making it available would require extra investment.
It is difficult to see what access to court records would provide for the public unless there were some search facility. My hon. Friend said that there would be, but that is not specified in the Bill. Such a facility would be very costly to develop, as literally millions of records a year would need to be sorted through. Someone could find the result they were looking for only if they knew the exact person, court or hearing involved. Effectively, the public would have access to endless data but get very little useful information—a costly exercise for very little public value.
We are also concerned that the Bill could work against rehabilitating those convicted by the courts. Let me explain why I say that. The Rehabilitation of Offenders Act 1974 sets out various times after which a conviction becomes spent—when it does not have to be disclosed. My hon. Friend said that it would be done in real time, or within relatively real time, and that an electronic system could be devised incorporating a natural lapse of spent convictions. The aim of current legislation is to allow individuals to move on with their lives, particularly those whose offence was at the lower end of the scale. In order to safeguard the more vulnerable elements of our society, such as children and the old or infirm, certain professions are exempted from the Act, and all convictions, whether spent or not, have to be disclosed.
That is where the Criminal Records Bureau comes in. That is why we have an expert body doing the criminal records work. It does the necessary checks, and passes the information on to a prospective employer when relevant. I think that most people would consider that to be perfectly reasonable. It strikes a balance between open access to the criminal records system and the rights of those who have transgressed to move on with their lives. My hon. Friend the Member for Bury North (Mr Nuttall) made a point about people who change their names in order to get away from a criminal record. The Bill does not address that point. However, the CRB has in place a thorough system of identity checking. The registered body, which must countersign any application to the CRB, is under a statutory duty to carry out thorough identity checks. The proposed online system would not put in place anything to cover that loophole.
Hon. Members on both sides of the House will know that we are changing how the system operates through the provisions in the Protection of Freedoms Bill that is before the House, as I mentioned briefly before. Furthermore, the Rehabilitation of Offenders Act was itself the subject of a recent Green Paper, and the results of that consultation process are still under review by the Ministry of Justice. We would not want to take any action that could prejudge or impact in any way upon that review. However, if we put in place the system proposed in the Bill promoted by my hon. Friend the Member for Christchurch, there would be considerable potential for anyone to circumvent the provisions of the 1974 Act and find out about matters that have become spent.
To avoid that we would need to put in place a series of checks to weed out such spent offences, which would add to the cost overall. However, if court registers were made available online or in some other electronic form by the CRB, there would be no guarantee that removing the spent conviction from the records would achieve much.
Stephen Phillips
It is not simply that there would have to be an expensive exercise of removing records on just one occasion; they would have to be removed on a rolling basis over time. That is another defect in the Bill.
Lynne Featherstone
I thank my hon. and learned Friend for that helpful intervention. He raises an important point.
As we have seen, all sorts of information travels around freely on the internet, irrespective of whether it was intended that the information should get out. I was talking about the suggestion that the information be available online or in some other electronic form. In that case, it could not be guaranteed that if a spent conviction was removed, it would stay removed. The information would have been extracted into other forms of database long before then. It could also allow unscrupulous individuals to go on what are politely called “fishing trips” to see what they could find out about an individual. [Interruption.] I hear “neighbours” from a sedentary position. That is just one possible unintended use of the information available.
People could also use the information to get round the CRB system, however. They could deny individuals education or employment. They could even obtain information leading to more unpleasant actions such as revenge attacks, including in the context that my right hon. Friend the Member for East Yorkshire (Mr Knight) mentioned about neighbours checking who is in the vicinity. People could obtain information to see where and how revenge might be visited upon those whose records came to light so easily.
With any system, there must be a balance between the needs of all those who are affected. In our view, what we currently have succeeds, more or less, in achieving that. Those who could be a threat to children or vulnerable people are kept out of certain roles by the protection offered by CRB checks. In the case of offenders, they can put their past behind them, as allowed for by the Rehabilitation of Offenders Act 1974, and I hope become productive and useful members of society again. In the Government's view that process could be significantly undermined if the Bill were to proceed.
The Bill also contains a reference to the Freedom of Information Act 2000 and says:
“Information held by a criminal records office…shall not be ‘personal information’ for the purposes of the…Act”.
The Freedom of Information Act does not define personal information. Instead it provides that certain types of personal data as defined in the Data Protection Act 1998 are exempt from disclosure. Personal data are defined in the 1998 Act as data that relate to a living individual who can be identified from those data, or from those data and other information that is in the possession of, or is likely to come into the possession of, the data controller, which is, in the case we are discussing, the CRB. It includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of that individual.
It is important to note that “data” are also defined in the 1998 Act as information that is being processed by means of equipment operating automatically in response to instructions given for that purpose; is recorded with the intention that it should be processed by means of such equipment; is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system; does not fall within the categories above but forms part of an accessible record as defined elsewhere in the Act, and refers to, among other things, health and education records; or is recorded information held in any form by a public authority and does not fall within any of the categories I have listed. We can be fairly confident that, in whatever form it is provided, the information we are discussing today would be considered "personal data" for the purposes of the 1998 Act, given the definitions I have just set out.
In addition, section 2 of the 1998 Act makes it clear that sensitive personal data include information about an individual's racial or ethnic origin, his political opinions, his religious beliefs, his sexual life and information of any proceedings for any offence committed or alleged to have been committed, the disposal of such proceedings or the sentence of any court in such proceedings. Sensitive personal data are given special protection under the 1998 Act. In order for the processing of that data to be lawful, it must comply with the eight data protection principles that are set out in schedule 1. Those principles are as follows: that the data are processed lawfully and fairly, meeting conditions in both schedules and, in the case of sensitive personal data, the conditions in schedule 3 as well; that data are obtained for specified and lawful purposes and will not be processed in any manner incompatible with those purposes; that data are adequate, relevant and not excessive; that data shall be accurate and up to date; that data shall not be kept for longer than is necessary; that data shall be processed in accordance with the rights of the data subject; that technical and organisational measures shall be taken to prevent unauthorised or unlawful processing; and that data being transferred outside the EEA must be sent only to countries that ensure an adequate level of protection for the rights and freedoms of data subjects in relation to processing data.
For sensitive personal data to be processed lawfully, one condition in both schedules 2 and 3 must be met. The conditions in schedule 2 are as follows: that the data subject consents to the processing; that the processing is necessary for the performance of a contract; that the processing is necessary for compliance with a legal obligation; that the processing is necessary to protect the vital interests of the data subject; that the processing is necessary for the administration of justice or for the exercise of a function of a public nature exercised in the public interest; and that the processing is necessary for legitimate interested purposes by the data controller or third parties, except where this is unwarranted due to the prejudice to the rights and freedoms of the data subject.
The conditions in schedule 3 are as follows: that the data subject explicitly consents to the processing; that the processing is necessary because of an employment obligation; that the processing is necessary to protect the vital interests of the data subject in respect of other people where consent cannot be obtained; that the processing is carried out in relation to trade union, political, philosophical or religious purposes with appropriate safeguards, and as long as this does not result in the disclosure of data to a third party without the consent of the data subject; that the information has been made public by the data subject; that the processing is necessary for the purposes of legal proceedings; that the processing is necessary in the interests of justice; that the processing is necessary for medical purposes; that the processing is necessary for identifying equal opportunities, and other specified reasons, including the police exercising their common law powers.
The objective of the part of the Bill relating to the Freedom of Information Act 2000 would appear to be to prevent details of convictions from being released.
Section 40 of the Freedom of Information Act provides an exemption from disclosure for some personal data. Where the applicant is seeking information on himself, the information is completely exempt under section 40(1) and the applicant should instead make a request under section 7 of the Data Protection Act. That is known as a subject access request.
Where the applicant seeks information that includes the personal data of a third party, it may be released only to the requesting member of the public if to do so would not contravene any of the data protection principles set out in the Data Protection Act. Those principles ensure that an individual’s personal data are, among other things, only processed—in this context released—when it is fair and lawful to do so. It cannot be right that the protection of an individual’s personal data against unfair processing should automatically be overridden in the way envisioned in the Bill. Not only is it not right but there would be real concerns about whether this part of the Bill would be compatible with article 8 of the European convention on human rights. I will say a little more about that shortly.
The issues are not only freedom of information, but the Data Protection Act. Court registers contain considerable personal information—names, addresses, dates of birth, driving licences—on individuals, and not just offenders but victims and the not guilty. Such records are all subject to the Data Protection Act, and we would need to consider how publishing them, especially in the sort of volume that we are talking about, would impact on people’s personal rights.
Clause 1(3) requires that the criminal records office must ensure that
“the registers it holds are no more than one month out of date at any time”.
Courts already have a target to result all cases within six working days. So this would be eminently achievable, although there would be issues about the filtering that would need to take place to remove records not in the public domain, which may slow the process up a little. However, records are not updated after they have been published, so if someone successfully appeals against a conviction, the original conviction would remain in the magistrates court register. Someone searching the register would have no idea whether the individual had appealed, nor what the outcome was. If Crown court registers were not published, people would never be able to find out about an appeal hearing. Creating links between systems and updating information in real time would be extremely complex, not to mention costly. At the moment, the Criminal Records Bureau does this work by examining all the records and giving out the information on only the most current position.
I have already alluded to article 8 of the European convention on human rights, which states:
“Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Clearly, as we have heard, a balancing exercise needs to be carried out, and although there may well be a public interest in having an open justice system—which we do have—that still needs to be weighed against the rights of the individual.
As was said in the Supreme Court case of R (on the application of L) v. Commissioner of Police of the Metropolis, which concerned the disclosure on an enhanced CRB certificate of information that had not resulted in a conviction in relation to an individual seeking to work with children, the correct approach when looking at two competing convention rights, or when looking at whether interference with article 8 is proportionate, is that neither right takes precedence over the other.
Stephen Phillips
I am afraid that at this point in the Minister’s argument we may be parting company. The mischief with which the Bill seeks to deal is the fact that this information is already in the public domain. Is she suggesting that our courts should close their doors because article 8 means that there is some interference with people’s human rights as a result of their being subject to open criminal proceedings?
Lynne Featherstone
That is not what I was suggesting. We do have an open justice system, but I am saying that the balance is between having an open justice system and the rights of an individual.
Before I conclude, I wish briefly to deal with one issue that I have not yet mentioned, which is the mistakes made by magistrates courts. It is sad to hear of such poor record keeping and I hope that magistrates courts will seek to address it. I am sure that those in the Ministry of Justice will read the report of this debate and may wish to take the matter further.
We need to take all the considerations I have mentioned into account. I accept that my hon. Friend the Member for Christchurch had the laudable intention of opening up criminal records and making them more accessible, but I have set out the great difficulties and challenges in doing that, and the mischiefs to which it may lead. It is the Government’s view that, at this time, there is no need to add give the CRB the additional work load that this Bill would impose, nor is there a sufficient public need for this sort of system to be set up. I must therefore inform the House that the Government do not support the implementation of this Bill.
Mr Chope
That comes as a great surprise to me. I thank the Minister, however, for her response. All the mischiefs she said would arise were my Bill to be enacted are the very mischiefs that can arise at the moment when information is gleaned at the time of the court case by the media. That takes me back to the point I made at the outset, which was that if
“the press or the media had covered the case and was able to get a copy of the newspaper report or media broadcast then”—
at that time—
“although the personal data in question would have been processed by becoming part of those reports—the Appellant would have had legitimate access to the information and the personal data he was seeking…If the local newspaper or media outlet put the court report within a webpage on the internet or as a ‘podcast’ to be downloaded by the Appellant—whether there was a ‘search’ facility on the site allowing specific names or topics to be highlighted and retrieved or not—and then viewed, printed out, played or stored, then all of that is legitimate processing of personal data within the current statutory legislation.”
I am grateful to those who participated in the debate. I think that everybody, except the Minister perhaps, recognises that there is an anomaly. It is inconsistent that court cases can be dealt with differently as regards public access to information about those cases depending on whether they are covered by the media, whether an individual is present in court and so on.
If the Minister reconsiders the issue, I hope that she will recognise that there is an anomaly. If she accepts that there is one, I hope that she will feel that it is incumbent on her Department to try to find a solution. Although my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) poured quite a lot of cold water on my Bill, he accepted that there was an anomaly and that this was an attempt to address it. When the Director of Public Prosecutions talks about the possibility of introducing cameras into courts and reasserting the importance of public access to the criminal justice system, it seems anomalous that we have this problem. One thing that has come out of the debate is that I have accepted that my Bill is probably not the right solution to the problem at this time, but I hope that the pressure of the debate on the Minister will be such that she will try to get her officials to work on coming up with a proper solution—perhaps one that could be brought forward as an amendment to the Protection of Freedoms Bill on Report, as all the issues relating to the criminal records office are being dealt with in that Bill.
Finally, I am very concerned about the inaccuracies on the registers, which must cause everybody great concern. The Criminal Records Bureau is producing inaccurate material. I had a constituent who was a wing commander who wanted to do some voluntary work somewhere. He found that somebody had stolen his identity and that his records had been linked with the criminal records of another person. That caused enormous embarrassment and, in the end, it was only after we went to see the then Minister in the Home Office that things were put right. My constituent was the victim of fraud, but there seem to be a lot of victims of mistake.
Lynne Featherstone
On the point that the Criminal Records Bureau might be holding incorrect information, I am sure my hon. Friend will be glad to know that one of the new provisions in the Freedom of Information (Amendment) Bill means that the certificate will now go only to the individual applicant and not to the employer, giving them the chance to dispute the information before it causes any harm to their employment.
Mr Chope
That is helpful, but my hon. and learned Friend the Member for Sleaford and North Hykeham was making the point that inaccurate information is being recorded in courts. We must have a system to put that right. My Bill relates only to prospective court registers, not historical ones. Even so, I hope we can have a system whereby from now on magistrates court records of convictions are 100% accurate, rather than containing anomalies and inaccuracies. That is my hope—perhaps it is an aspiration—but having said that, I beg to ask leave to withdraw the motion.
Motion, by leave, withdrawn.