East Devon gears up for criminal records debate

Tories want checks after one of their councillors jailed

A debate over Disclosure and Barring (DBS) is set to take centre stage at East Devon District Council (EDDC) in the wake of the conviction of former councillor John Humphreys for child sex offences.

Following the jailing in August of Mr Humphreys, who as well as serving on the district council was a former mayor of Exmouth, the Conservative group at EDDC called for mandatory criminal record checks for councillors and anyone who stand for election to the council in future. 

Humphreys, 59, is now serving a 21-year prison sentence after being found guilty at Exeter Crown Court of sexually assaulting two boys between 1990 and 2001.

The Tories quickly distanced themselves from their former member and, following his conviction, called for DBS checks for both councillors and candidates - something which is of dubious legality as laws already exist to restrict people with recent criminal records becoming councillors.  

Since announcing their policy idea, the East Devon Conservatives have yet to move forward a motion to introduce any form of council-wide mandatory checks.

However, EDDC’s audit and governance committee will meet this Thursday, 18 November, to consider an officer's report on proposed DBS checks. An earlier report in 2017 concluded that the only option available was basic DBS checks, which only provided very limited information relating to 'unspent' convictions, which generally means very recent ones or those that carry only light sentences. Officers argued that the council’s options are still very limited.

The new report reflects that conclusion and says that the council can still only ask for basic DBS checks. This would be to check if declarations given on the forms of newly-elected councillors are correct.

In 2017 East Devon's cabinet, which was Conservative-led at the time, said concerns over data protection and human rights issues, combined with the fact that basic DBS checks reveal very little, meant that it was not appropriate to make councillors go through the checking process.

The cabinet encouraged councillors to release basic checks voluntarily "in the context of safeguarding vulnerable adults and children." In any case, it is a requirement for organisations appointing people into roles involving interaction with vulnerable adults and children to request more comprehensive enhanced checks.

In their new report officers have concluded once again that: "there is currently no basis to require a standard or enhanced check” for all councillors.

Everyone with a relatively minor criminal past is entitled to be rehabilitated after a certain length of time so that the slate can be wiped clean.  Crimes that result in a prison sentence of four years always show up on DBS checks and can never be 'spent.'  

Standard checks show spent and unspent convictions as well as police cautions. Enhanced checks detail all convictions and cautions, and also extra information from police. These can only be requested if they are relevant to the role, such as a school governor.

In calling for the change in August, the Conservatives did not say whether they want basic or standard checks, but they are demanding "the enhanced version if an individual is expected to work with vulnerable people, including children" - something which is already the law.

Some councils, including Devon County Council (DCC) do ask for basic checks. However, although every councillor at DCC has undergone these checks they are not actually a legal requirement. If a DCC councillor were to refuse current policy says there would be a risk assessment "and an appropriate condition adopted." At the same time, mandating the higher level of checks comes with legal ambiguity.

Commenting on the East Devon Tories' suggestion in September, employment lawyer Terry Falcao, a partner at south west legal firm Stephens Scown, said councils that “enforce DBS checks may be acting unlawfully."

He continued: "The point of DBS checks in most cases is to protect children and vulnerable people, and requirements for such checks would usually be because the individual would have unsupervised access to such people. 

“If a councillor did not routinely have such access it is difficult to see how such an obligation can be justified other than to restrict the pool of whom might consider a political career or involvement in politics or alternatively for some political spin.”

At this week’s meeting, councillors will discuss the new report and decide if they want to make more recommendations on DBS checks. 

One possible idea is to have the council pay for voluntary basic DBS checks.  Right now, any EDDC councillor carrying out this kind of DBS check has to pay the £23 bill themselves. If all 60 councillors were to undergo the check it could cost the council £1,380.

Councillors could also agree to lobby government to make standard or enhanced DBS checks a legal requirement. Right now a private member's bill, introduced by Tory MP Sir Paul Beresford, could result in tighter rules on who can become a councillor. The bill, still at an early stage, would prevent those involved in some types of sexual offences from taking such a role.

It may not have made a difference in the case of Mr Humphries, who had been a Conservative councillor for many years and, as a governor of an Exmouth primary school, would have undergone criminal records checks. His crimes only became public many years later and after the council had honoured him with the title of 'alderman' - something they withdrew after he went to prison.