We Know What you did Last Summer, and 30 Years Ago: Criminal Records Disclosure and State Regulatory Discretion

Noble, Andrew (2016) We Know What you did Last Summer, and 30 Years Ago: Criminal Records Disclosure and State Regulatory Discretion. Journal of Information Rights, Policy and Practice, 1 (1). ISSN 2398-5437

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Official URL: https://doi.org/10.21039/irpandp.v1i1.22


Despite a number of adverse court rulings and amendments to the legislation as a consequence, the system of disclosure in relation to criminal records in England and Wales still gives cause for concern. As other studies have pointed out, the disclosure system in England and Wales is out of step with other jurisdictions in that it permits disclosure of information which is out of date, relates to matters which do not result in criminal conviction, and is largely irrelevant to the activity which triggered the request for disclosure. Such a system is said to be justified in order to protect the public. Human rights concerns dictate that public protection is balanced against an individual’s right to respect for his/her private and family life and the opportunity to rehabilitate oneself. In an attempt to achieve such a balance the disclosure regime in England and Wales provides for a ‘two-tier’ system of ‘ordinary’ and ‘enhanced’ disclosure, with the latter providing information on an individual beyond convictions and cautions. The Disclosure and Barring Service, which operates the disclosure system, reports that ‘Enhanced’ Disclosure is the norm for employers and regulators to seek, even where that level of disclosure is not justified under the statutory provisions. In this study I analyse data from existing research, court decisions, publicly available police policies and records from state and professional regulators, to examine how the police exercise their discretion on disclosure and how regulators exercise their discretionary powers in the light of the information disclosed. The findings of this study suggest that the amendments to the disclosure regime in the light of adverse rulings are inadequate to achieve the appropriate balance between public protection and rehabilitation or privacy. The study proposes ways of structuring police and regulatory discretion in order to achieve a fairer balance.

Item Type: Journal Article
Keywords: Criminal Records Disclosure, Privacy, Discretion
Faculty: ARCHIVED Lord Ashcroft International Business School (until September 2018)
Depositing User: Andrew Noble
Date Deposited: 27 Jun 2018 15:20
Last Modified: 09 Sep 2021 18:59
URI: https://arro.anglia.ac.uk/id/eprint/703224

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