Criminal Records (Public Access) Bill

David Nuttall Excerpts

Friday 13th May 2011 Commons Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.