A newspaper editor is convicted of a offence because he failed to realise that a picture would break the law. Arrest, an appearance in court or a caution are increasingly a part of journalism and publishing – as are the life sentences that follow.
This was the fate which befell former Sun editor David Dinsmore earlier this month. He was convicted under the Sexual Offences (Amendment) Act because a heavily obscured picture of a sexual offence victim was found to have inadvertently identified her to those who were familiar with the original photo.
Former Newcastle Journal Brian Aitken received a similar conviction last year, under the Children and Young Persons Act, after his papernamed the school where a teacher was convicted of grooming a female pupil breaching reporting restrictions which he did not realise were in place.
These relatively minor offences faced by journalists are normally kept on police records for 100 years from their date of birth (even once they are spent).
The UK is out of line with the rest of Europe. In Sweden minor offences are deleted after five years and across the EU minor offences, where they appear on criminal records – in the Netherlands, for example, nothing under a €100 fine is put on a criminal record – have set periods after which they are expunged, as does Scotland.
Following a judgment by the UK High Court in 2012 the Government set up the Data Barring Service (DBS) separate from the police data system allowing filtering of criminal records for employment checks. Standard checks may no longer show ‘spent’ offences but the bad news for the national newspaper assistant editor fined at Bow Street Magistrates Court is that his details will remain on the police data base until he reaches 100 and, should he ever require an Enhanced Criminal Records Check his conviction will show on his sheet.
Journalists are not alone. According to the key judgment on this issue evidence given on the part of the UK at the European Court of Human Rights suggests that were time limits to be put on such data retention more than one million records would have to be expunged. In a casual remark while Justice Minister Ken Clarke stated that 25 percent of the population have criminal records. That is some 20 million people.
The Court of Human Rights in Strasbourg receives practically no inquiries from British Journalists and has adopted a policy on not commenting on UK matters. As the “first” journalist to seek and be granted a briefing some five years ago I was told that the lack of an expungement system was “the only major issue with regard to the UK”.
Asked last week whether expungement was still an issue a spokesman referred to the ECHR judgment M.M v The UK delivered in April 2013 and in a statement commented: “In the judgment M.M v the UK, the Court found a breach of the applicant’s right to respect for private life because the legal framework for retention and disclosure of criminal record date did not provide safeguards to ensure that her data had not been, and would not be, disclosed in violation of her right to respect for her private life.”
M.M is a grandmother who on learning that her grand daughter was being taken to Australia took her from her home for a couple of days and after returning the child admitted “kidnapping” and received a caution following which she was repeatedly refused work in the NHS after Criminal Record Checks.
In the judgment containing repeated references to those of the UK High Court the ECHR noted that in the UK “… the recording system covers not only convictions but includes non-conviction disposals such as cautions, warnings and reprimands. A significant amount of additional data recorded by police forces is also retained.”
And in what should be cause for concern among journalists the judgment added: “It is clear from the available guidance that both the recording and, at least the initial retention of all relevant data are intended to be automatic. It further appears from the policy documents provided that a general presumption in favour of retention applies and that as regards data held in central records which have not been shown to be inaccurate, retention until the data subject has attained 100 years of age is standard in all cases.”
While the UK has now created a filtering system the ECHR judgment refers to enhanced checks that reveal all, with no distinction on the seriousness of the offence and the time that has elapsed.
The judgment highlights that there are no safeguards that information will not be disclosed in violation of Article 8 – the right to a private life.
Referring to a judgment by the UK’s Lord Hope the ECHR noted that in 2008/2009 275,000 requests were made for Enhanced Criminal Record Checks. It also referred to Lord Neuberger’s comment that even where a caution or relatively minor conviction or questionably relevant offence is concerned an employer may prefer to reject the job applicant.
Agreeing with the British judge the ECHR judged “…it is realistic to assume that, in the majority of cases, an adverse criminal record certificate will represent something close to ‘a killer blow’ to the hopes of the person who aspires to any post which falls within the scope of disclosure requirements.”
Despite judgments of the UK High Court the Government has taken a very broad view of Article 8 and the judgment of the ECHR. Asked for a statement the Home Office quoted the Minister for Policing, Fire, Criminal Justice and Victims, Mike Penning stating:
“We have no plans to introduce a system to allow criminal records to be expunged.
“Records are retained by the police in case they are necessary for policing purposes. They may also be disclosed to eligible employers or licencing authorities following an application to the Disclosure and Barring Service (DBS) for a standard or enhanced criminal record certificate.
“Disclosures are subject to strict rules enabling old and minor convictions to be filtered so that they do not automatically appear on a criminal record certificate.”
Currently any journalist falling foul of the law should bear in mind that any further minor offence would currently mean that both would show up on a standard criminal record check. The issue of two offences appearing is subject to a recent critical judgment in favour of two appellants and a call by the judge for the government to re-examine the situation.
Journalists and publishers have been ruled legally liable for what appears so perhaps they should move to Scotland. While the system almost certainly does not meet the ECHR’s interpretation of reasonable the country does have an expungement system.
The Scottish Government said in a statement: “We are committed to ensuring appropriate disclosure takes place, this means balancing the protection of the public and allowing those with previous convictions to become contributing members of society. Getting this balance right is key to reducing reoffending.”
In a background note they state:
“The operation of Police Scotland rules means that after certain criteria are met, information relating to old criminal activity is deleted from the system. Each case is weeded (i.e. completely removed) from the CHS on its individual merits based on the appropriate retention rule. Records are removed (or weeded) from the system using criteria relating to the seriousness of the offence; the age of the individual; and the length of time that has passed since the offence was committed.
“Scotland’s criminal record sheets do not include spent cautions obtained in England Wales or Northern Ireland. Unless a person has a conviction for a sexual or sexually aggravated offence, or has been sentenced to life imprisonment or indefinite detention for any offence, when that individual reaches the age of 40 and at least 20 years after the offence (or the age of 70 and at least 30 years) have passed since the date of conviction, the information about the offence will be weeded from the CHS and will not therefore be available to be disclosed.”
The UK is now signed up to the European Criminal Records Information System and its failure to introduce a reasonable expungement system is causing waves of animosity across the EU. A senior German Police Officer acting as an advisor to the European Commission remarked: “The UK is completely out of order. They need to understand the difference between law and order and terrorism. In Germany minor offences are automatically expunged after three years.”
In Belgium anyone convicted of a non-violent or serious offence after five years can apply to a judge to have their record expunged and usually expungement is approved.
A Brussels lawyer who asked to remain anonymous said: “People should have a chance to recover their good names. If someone does something stupid or breaks the law when they are young and can show they are leading a clean life they can get their offence expunged and live productive lives.”
Journalists, like everyone else, should consider the implications for foreign travel or working abroad. Police records as well as being exchanged through ECRIS in Europe are made available to “friendly” countries. Australia and New Zealand require declaration of previous as do many others. Work permits may be difficult, or impossible, to get.
Asked for a comment Christopher Stacey of the Kent based organisation UNLOCK helping people with records get jobs said in a statement: “There are over 10.5 million people in the UK that have a criminal record. The current approach of the police indefinitely retaining all cautions and convictions, no matter how old or minor, is disproportionate and unnecessary. It means that peoples lives are unfairly blighted because of misdemeanors that often occurred when they were young.”