The Ted Heath Question
The law allows mere suspicion to mete out lifelong punishment, undermining the presumption of innocence
As the wave of allegations of sexual harassment and abuse continues to gather force, a sense of disquiet is growing. The fears are not unfounded. Allegations, repeated often enough, can live on forever. Many recently aired allegations of sexual misconduct will never lead to trial. Even where they do, an acquittal offers no protection from negative publicity or a corresponding entry on an enhanced DBS certificate, let alone a remedy to a ruined reputation. Both present a threat to the presumption of innocence.
As Daniel Janner QC’s vow to see the man who falsely accused his father of child abuse prosecuted shows, unproven allegations of sexual misconduct can haunt individuals and their families for life.
Disquiet aimed at the police for failing to test the veracity of allegations made against Ted Heath furthermore, reflects an awareness of the devastation that can be wreaked by false allegations. Years after his death, speculation continues over his alleged role in child abuse, raising the question: after an unproven allegation, how can someone retrieve their reputation?
The paper trail left behind after an allegation can serve to prevent the falsely accused from clearing their name. When a suspect is investigated or arrested prior to a decision to take no further action, the police may retain details of the allegation either on local systems and/or the Police National Computer (PNC). This “soft intelligence” is rarely deleted and may be disclosed on enhanced DBS checks. A single uncorroborated allegation of a sexual offence may bar the way to a range of activities involving children and the vulnerable.
The tension between an individual’s right to privacy and the corresponding public interest in disclosure is starkly illustrated by the operation of s.113B of the Police Act 1997. The statute requires the police to disclose such soft intelligence where the chief officer reasonably believes it to be relevant for the role applied for and, in the chief officer’s opinion, ought to be included on the DBS certificate.
Although Home Office guidance on disclosure makes clear that the decision to disclose must be relevant and proportionate, the police can be over eager to disclose allegations of sexual offences in order to minimise the risk of failing to protect the public. For individuals who have been falsely accused, the disclosure can have an overbearing and disproportionate effect on their personal life and career. Cases of teachers of good character being unable to find work on the basis of a single unproven allegation is symptomatic of a system which repeatedly fails to properly consider individual circumstances in the rush to disclose allegations.
There is a special problem for those accused of crimes in the context of their work with children or vulnerable adults. Where the investigation does not lead to any charges, it may still be recorded and disclosed, however unreliable. The difficulty is that the people most likely to suffer false allegations of this nature are those who work with the vulnerable, such as teachers and carers. Equally, for parents wishing to engage in voluntary work or undertake activities at their children’s school, a single uncorroborated accusation may block their path.
Although the subject of a DBS check can make representations against disclosure and, where unsuccessful, may appeal to the Independent Monitor, such challenges rarely succeed. Only 8% of challenges were successful in 2015, 7% in 2014, 4% in 2013 and in 2012, the success rate was zero.
The process is cumbersome and beset by delays in the absence of any statutory time limits for the IM to reach his decision. Where the decision to disclose is upheld, the individual’s only further remedy is by way of judicial review. Arguably, the introduction of the appeal to the IM simply serves to introduce another layer of bureaucracy at additional cost; prior to this, an individual could go straight to judicial review. Should the IM concede the position and uphold the appeal on threat of judicial review, the significant costs incurred are not recoverable. With the erosion of legal aid, it is often the case that only those with deep pockets can challenge
these decisions.
That individuals performing useful public service roles can see their professional lives come to an end as the result of a single unproven allegation, is unjust. A new DBS regime is needed to afford more protection to individuals who have been acquitted, as well as those on the receiving end of unproven allegations.
Stefano Ruis is a partner at Hickman & Rose, a London law firm