UK Liberty

Presumed guilty

Posted in database state, law and order, politicians on liberty by ukliberty on November 17, 2008

Basically we’ve done away with the concepts of the presumption of innocence and due process.

Which is nice.

The Telegraph:

Over the past five years, the CRB has sent out more than 12,000 letters saying people had been convicted or accused of rape, paedophilia, or some other ghastly crime, when in fact they had not. … Demonstrating that the CRB has got it wrong, and getting it to change its erroneous record, takes weeks and can sometimes be impossible.

And it is all about to get much worse. The Government has created a single central authority that will issue edicts specifying whether an individual will be permitted to work with children or “vulnerable adults”. From January 2009, the Independent Safeguarding Authority will consolidate the CRB and other records of 11.3 million people. You will have to pay £68 to have your records checked by the new agency, but the payment won’t mean fewer mistakes. The CRB insists that its records are already 99.9 per cent accurate. That claim is not very plausible – the old Child Support Agency, for instance, made errors in more than half the cases it processed – but suppose it’s true: it will still mean that the new database will wrongly identify 11,000 people every year (or 30 people every day) as unsuitable to work with children because of a ficticious blot on their record.

The new system will exhibit a far worse defect than liability to error, however. It will cement the rule that allows accusations on the CRB (and therefore held on the new database) to be retained and passed on regardless of whether there is any evidence to support them.

In August, the High Court handed down its decision [you can read it on Bailii – warning, graphic language] on the case of Michael Pinnington, who worked with mentally disabled children. He had been fired from his job and refused any further employment in his chosen field because the CRB revealed that there were accusations that he had sexually abused mentally disabled youngsters. Those accusations had not resulted in his being charged, let alone tried. The police quickly reached the conclusion that there was no prospect that a jury would convict on the evidence. The accusations had been made by an intermediary interpreting what the disabled children had said. The method of interpretation used has been condemned by the American Psychiatric Association as “not a scientifically valid technique”. The English Courts reject it as “dangerous”.

Lord Justice Richards, who wrote the judgment, recognised that there was no significant evidence that the accusations against Mr Pinnington were true. But, he ruled, the test for whether accusations should be passed on by the CRB is not whether they are true or even plausible. The test is simply whether they might be true. Since the accusations against Mr Pinnington might be true, the CRB was entitled to pass them on. Which meant Mr Pinnington had to accept that he would never work with children again.

That decision was a defeat for both justice and common sense. To endorse a rule that allows baseless accusations to destroy lives marshals cruelty to no purpose. Lord Richards ought to know that.

Um, he had to follow the law, there is no ‘common sense’ about it. (I thought, though, that a claim might succeed based on fundamental principles of the rule of law.  Clearly I am out of my depth here.)

After all, something similar happened to him. He was accused of exposing himself to a woman on a commuter train. The police did not drop the allegations. They went to trial. Lord Richards was eventually acquitted because the court accepted his defence that his accuser had wrongly identified him as the man who had exposed himself (although his accuser never did so). But think (as Lord Richards evidently did not) what would have happened had the judiciary followed the rule that any accusation on the CRB of a sexual nature which might be true should be allowed to disqualify a person from being a judge. Lord Richards would have been thrown off the bench, and quite possibly out of the legal profession. For his acquittal did not prove that the allegation against him could not possibly be true. It merely demonstrated that it was not proved beyond reasonable doubt – which is not the same thing.

Fortunately for Lord Richards, the judiciary does not follow that rule. But other professions do, including the one that Mr Pinnington had chosen, and it means that the unsubstantiated and implausible accusations against him have destroyed his career. Many people involved in caring for children will suffer Mr Pinnington’s fate. And for what? It cannot possibly protect children to have a system that ensures that everyone who has lots of experience looking after children is thrown out or driven away from child care. But that is likely to be the long-term result of Lord Richards’s decision to let unsubstanitated accusations flourish. I hope he is grateful that he does not set the rules for membership of the legal profession.

I think the article is rather unfair on Lord Richards, who seems to have followed the law is it is, not as we would wish it to be.  What we should be criticising (well, if we think it is unfair, which I do) is the legislation that led to this situation and the legislators that facilitated it.

And, as I wrote in September, it isn’t just jobseekers who will be affected (and even those may be wrongly asked about), but volunteer chaperones at school discos, would-be Girl Guide and Scout leaders, and so on – even leafleters in Telford Town Park.

is this approach, the keeping of these lists affecting so many people and so many activities, and the organisations ‘playing it safe’ by excluding you based on unproven allegations and no CRB check at all, a reasonable and proportionate approach?

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