The physical and sexual abuse of the vulnerable - the young, the old or mentally infirm - is a continuing problem for the 1990s. Employers must ensure that carers and those in positions of trust do not exploit their role. The normal route to achieve this is through taking up and checking references as well as the proper supervision after appointment. This is the key mechanism means for applicants and employees without criminal convictions. But proper access to police and criminal records is an equally important process. Until now, there has been no statutory system of access to such records for the purpose of vetting candidates for employment, applicants for licences or people seeking visas for foreign travel. The arrangements that exist may reasonably be described as haphazard and in danger of infringing Article 8 of the European Convention on Human Rights which provides for a respect for the privacy of the individual except for such interference as is provided for by law and is necessary in a democratic society.

The Police Act 1997 contains provisions in Part V which allow for such interference. In the following discussion of these, it should be remembered that there are three parties whose interests require consideration:

The Act was one of the final pieces of legislation of the Conservative administration. The Labour government has decided to implement the Act and to set up a Criminal Records Agency but the timetable for this has yet to be finalised. The current situation is that police forces conduct, free of charge, criminal record checks on prospective employees at the request of employers. Several hundred thousand of such checks are made annually, especially on those working with children but also on taxi drivers, managers of residential homes and claimants for criminal injuries compensation. The situation is illustrated by the case of the Children Act 1989 which does not require criminal record checks to be carried out on childminders. However there are approximately around 24,000 new childminders registered each year in England and there is a statutory requirement for childminders, and other adults living on the same premises, to prove their fitness to be in the proximity of children. It has become the practice for local authorities to require applicants for registration as childminders, and other relevant adults, to undergo criminal record checks when they first apply for registration. At the moment, such checks are sought by local authorities and provided free of charge by the police. It is a labour intensive task. The new legislation will not only enable local authorities to obtain proper confirmation but will also pass the cost of this either onto the authorities or the individual applicants.

Currently there is no comprehensive nationwide collection of criminal records. There is a collection of records of those who have committed recordable offences held at the National Identification Service at New Scotland Yard. Local forces currently hold information about non-reportable offences, cautions and a certain amount of intelligence in relation to suspected crimes. Such information is subject to the Code of Practice for Data Protection made by the Association of Chief Police Officers (ACPO).

The new computerised criminal justice record service, known as Phoenix, became operational for new convictions for reportable offences from May 1995. From November 1995, new police cautions for the same categories of offences were also added. Eventually the records for minor, non-recordable, offences, at present held locally, will be held on Phoenix. The development of this system means that there will be a one central point to obtain the necessary information.

It is a problem that arises elsewhere. In a recent judgment, the Divisional Court tackled the conflict of policy between the 1974 and 1984 Acts. Where visas are needed to visit a foreign country, one requirement is often a certificate of prosecution or conviction history issued by the National Identification Service. R v Chief Constable of B County Constabulary and the Director of the National Identification Service the applicant sought to travel to country A and was required to produce such a certificate. That certificate included a spent conviction for minor theft committed when he was a teenager. The applicant had a right of access to the computer records and to the information held there - this is provided by s.21(1) of the Data Protection Act. But this was to the entire record - the issue for the court was whether the Rehabilitation of Offenders Act meant that the record should be amended to expunge the spent conviction. The court held that it should not be - the primary purpose of the Data Protection Act was to ensure that a person in respect of whom computerised information is held has access to that information. It was not for a data user (the Director of the National Identification Service was such a user) to provide part of that information.

The Government has recently produced a paper on its proposals for implementing the EC Data Protection Directive. In the paper, it states that it intends to put an end to this practice of enforced subject access and is consulting employers' organisations and others concerned seeking views on the best way of doing this. It is considering the responses and will announce separately how it plans to deal with this in the new law.

These problems will be diminished under the 1997 legislation. Inquiries and checking of criminal records and other information will be undertaken by a new criminal records agency which will have direct access to Phoenix as well as liaising with local forces for less formal intelligence. The Act does not mention a criminal records agency by name but legislation is not required for government departments to set up such an organisation and, as part of the Home Office, will be answerable to the Home Secretary. This agency will be self-financing on the basis of the fees paid for these checks. It will undertake this work for England, Wales and Northern Ireland. In Scotland the work will be undertaken by the Scottish Criminal Record Office.

The agency will provide individuals with information about their criminal records. In certain circumstances and with the consent of the individual, this information will also be provided to registered bodies. Such bodies will include employers, licensing bodies and voluntary organisations.

These certificates will be issued only to individuals and show only unspent convictions. They will state whether the subject has convictions recorded in central police records which are not spent under the Rehabilitation of Offenders Act. The Home Secretary suggested that it will be a matter for the applicant and employer to decide when it is reasonable to require that such a certificate be produced. Under s.112, an individual can apply for a certificate which gives details of every conviction of that person held in central records or states there are no such convictions. This was intended to meet the concern voiced by employers for a way of identifying applicants whose criminal records makes them unsuitable for a particular job. The procedure will be for the person to apply by post, providing not only the fee but basic personal information and two documentary proofs of identity. The Criminal Records Agency will issue a certificate to the applicant.

The section does help to resolve the problem of enforced subject access as it provides prospective employers with a legitimate mechanism by which they can obtain confirmation of unspent convictions. Although the certificate will be issued to the individual only and not copied to prospective employers, the latter will be at liberty to require production of a criminal conviction certificate before any job offer was made. However access to more detailed information, which is provided by both criminal record certificates and enhanced criminal record certificates, will only be available to registered persons entitled to ask exempted questions under the Rehabilitation of Offenders Act.

Currently the police run criminal records checks on groups such as tax drivers, minicab drivers, applicants for consumer credit licences, applicants for sex establishments and entertainment licences, applicants for Heavy Goods Vehicle and Public Service Vehicle licences. These groups are not exempted from the provisions of the Rehabilitation of Offenders Act and therefore it would be expected that employers and licensing authorities would ask for criminal conviction certificates to be supplied by applicants. However these situations are still covered by statutory obligations which would involve direct disclosure by the police to the employer or authority. The Act does not alter those arrangements.

These are described as a "full" check in the White Paper, covering both spent and unspent convictions. This will be available for occupations which are exceptions to the Rehabilitation of Offenders Act, such as doctors, nurses, teachers and prison officers. A joint application under the provisions of s.113 will need to be made by the individual and organisation which is seeking the check. Information will be provided from central police records about spent and un-spent convictions and about cautions. It will still be a matter for the applicant and employer to decide when it is reasonable to require that such a certificate be produced but when there is a certificate, there will be more information contained in it.

Enhanced criminal record certificates cover not only spent and unspent convictions but also other information. This will be restricted to those working on a regular, unsupervised basis with children; for certain licensing purposes; and, prior to appointment, judges and magistrates. An enhanced certificate will include the information contained in a criminal record certificate, plus information from local police records. Where relevant, non-conviction information might be supplied. It is possible that this could be provided to the employer but not the individual although this would only happen where the information might prejudice an ongoing or future investigation. There is still no requirement that such a certificate is required as a prerequisite in any occupation.

registered person; this bears the same meaning as for criminal record certificates

sensitive positions: these certificates can only be applied for, firstly, under s.115(3) by those persons being considered for a position which involves regularly caring for, training, supervising or being in sole charge of persons under 18 or, secondly, under s.115(4)(b) by those persons being considered for a position which involves regularly caring for, training, supervising or being in sole charge of persons over 18 or, finally, under s.115(4)(a) by those persons being considered for a position specified in regulations made by the Secretary of State

sensitive purposes: these certificates can only be applied for if the matter concerns gaming certificates, registration certificates under Lotteries and Amusements Act 1976, licences under section 5 or 6 of the National Lottery Act 1993, for child minding and day care under the Children Act 1989 or finally, the placing of children with foster parents under the Children Act 1989.

relevant matter: this term involves any conviction within the meaning of the Rehabilitation of Offenders Act 1974, including spent convictions and cautions. However for the purposes of the enhanced criminal record certificate, the term also includes any information that the police think may be relevant to the particular kind of employment or the particular purpose for which the certificate is sought. Again liaison will be required here between the local police force and the criminal records agency.

In complying with a request from the Criminal Records Agency for non-conviction information, the chief officer must decide what information might be relevant to the application for employment or the granting of the licence. The chief officer must also make a decision as to whom this information might be disclosed. There are two possibilities:

• under s.115(7), the chief officer may conclude that the non-conviction information is firstly relevant and secondly may be disclosed on the certificate itself so that it will be seen by both the applicant and the registered person;

• under s.115(8), the chief officer may conclude that the non-conviction information is firstly relevant and secondly ought not to be included the certificate, in the interests of the prevention and detection of crime. Thus the information will be seen by the registered person but not by the applicant.

There is a third logical possibility - that the chief officer may conclude that the non-conviction information is relevant but ought not to be disclosed either on the certificate itself or to the registered person. In all three situations, chief constables will be responsible for the accuracy of information provided and for the decision to disclose or not to disclose that information. While the Criminal Records Agency and the Secretary of State are immune from proceedings, should information be provided by the police negligently, the individual may have a remedy against them, although in the UK, cases have generally held that the police have no duty of care to the public. Similarly, while the negligent provision of misleading information may provide an individual with a cause of action against the police, a failure to furnish relevant information to the registered person may have the same outcome - employers or others may suffer harm or damage as a result of an unsuitable person being appointed and those persons may well have a cause of action against the police.

This wider access to criminal records and police intelligence raises civil liberties issues, not least the need to strike a balance between the need to protect vulnerable members of society, particularly children, while avoiding the need for intrusive checks. Vetting can reveal information about individuals that might have no relevance to the particular job and could lead to unnecessary discrimination against ex-offenders. There is particular concern when a check involves revealing police cautions or intelligence, information which has not been tested before the courts or indeed in any procedurally proper fashion.

The legislation seeks to strike that balance by restricting the use of spent convictions to situations already provided for under the Rehabilitation of Offenders Act. Strict limits have been placed on access to sensitive, non-conviction, information. In the original provisions of the Bill, enhanced criminal record certificates were only to be available in situations where children might be at risk and for those applying for gaming, betting and lottery licences. This restrictive approach meant that the enhanced certificates would not to be available in situations involving, for example, the old, the infirm or those who were vulnerable in some other way. However the government amended the Bill to include s.115(4)(b) to enable enhanced criminal record certificates to be available in a wider range of circumstances.

Despite such safeguards in relation to criminal record certificates, the Act will permit much broader, less restricted access to the criminal records of individuals through the use of criminal conviction certificates. It was s.112, creating such certificates, that attracted most parliamentary criticism. Thirty-five per cent. of men and eight per cent. of women under the age of 35 have some kind of criminal record, whether in spent or unspent convictions, and the protection afforded to them by the Rehabilitation Act 1974 is limited. The impact of criminal conviction certificates may be that young offenders would be prevented from getting into employment. According to the Apex Trust, a body that deals with ex-offenders, ex-offenders without suitable work are three times more likely to re-offend than those in work.

Although criminal conviction certificates are seen as an improvement on earlier, ad hoc arrangements, it is likely that pressure from employers will mean that job applicants will need to obtain a certificate, opening the door to unrestricted vetting as well as to discrimination. One improvement might be the expansion of the parameters of the Rehabilitation of Offenders Act, so that its provisions applied to prison sentences that were longer than 30 months. A further limiting factor might involve the prospective employer having to show good cause before asking to see a certificate.

An alternative restriction might have been to limit disclosure of convictions to those which were relevant to the job being sought. A homosexual offence may have no relevance to a wide range of jobs. Where there is relevance, it is important that the information should be available; but where the offender has committed an offence that is not relevant to the job being sought, there should be a code of practice would prevent discrimination.

The European experience of holding this balance varies. In certain countries, for example the Netherlands and Greece, this balance is maintained by allowing a public official, often the mayor, to issue certificates if they find that there is no objection to an individual being appointed to a particular job. There is no automatic issuing of records and information. More countries, such as Italy and Spain, issue certificates where sensitive issues such as those under ss.113 and 115 are involved. But only Germany and Belgium have systems similar to that created by s.112 which opens up the possibility of wide and unrestricted use of information, comparable to the criminal conviction certificate scheme.

Some of the concerns about discrimination and the rights of the individual are addressed by

s.122 which puts an obligation on the Secretary of State to publish a Code of Practice. The White Paper suggested the following should be incorporated in such a Code:

• a prerequisite of registration under s.120 would be an acceptance of the Code and an intention to abide by its mandatory provisions

• registration would be restricted to bodies likely to make in excess of 200 applications per year. Such umbrella organisations should ensure that all its associates have signified their acceptance of the Code in writing.

• failure to observe the Code may lead to investigation by the Criminal Records Agency and the withdrawal of registered status.

The Act does not require any monitoring scheme to ensure compliance with the Code. Where problems emerge, the Secretary of State may refuse to issue a certificate if he or she believes that the registered employer has failed to comply with the Code and will also be able to suspend registered bodies which he or she considers have failed to abide by the code. In addition criminal sanctions exist under s.124 against individuals who breach the code by disclosing conviction information to those not entitled to it.