text: West Midlands Police.2The central tenet of the judgment in R (L) was that
  there should be no longer a presumption in favour of disclosure, but
  rather a new test founded upon that most pernicious judicial chestnut,
  ‘proportionality’. In electing to declare that there now existed in all cases
  a need to balance the protection of vulnerable people against the rights
  of those damaged by enhanced disclosure, the court swept away the R
  (X) presumption that information should be disclosed ‘if it might be
  It is now two years since the passing of a judgment which some
  predicted would prove the high-water mark of vetting.3This is a multi-
  faceted area of law which carries much social and legal signiﬁcance in
  spite of a relatively low level of academic or public scrutiny. This article
  will attempt to consolidate and evaluate the judicial interpretation of the
  legislative framework of the CRB and disclosure certiﬁcates; ﬁrst, by
  outlining that framework and, indeed, the remit of the CRB itself;
  secondly, through an extrapolation of the tests, and their application,
  which have governed the disclosure of so-called soft material and,
  ﬁnally, by examining the subsequent application of the R (L) test in
  decided cases to determine whether those predictions made in the
  immediate aftermath of R (L) have proven accurate.
  It is clear that we must have effective measures for sharing information
  about potentially dangerous individuals. However, those measures must be
  proportionate and allow for representations to be made before information
  is disclosed. Unless the procedures are changed, the careers of many
  individuals will be ruined for no substantiated reasons. And the people
  who will suffer will be the very children and vulnerable adults that the
  Bichard Report4intended to help.5
  It has long been accepted, in the UK and many other EU countries,6that
  employers have the right to make background checks against pro-
  spective and incumbent staff to verify their suitability for employment.7
  In England, this right may be traced to Henry Fielding, who in the 1740s
  instituted the post of ‘Register Clerk’, whose responsibility it was to
  record both any crimes reported and the names of those suspected of
  involvement and/or convicted. Fielding’s register was, in 1749, to form
  the basis of the Universal Register Ofﬁce, ‘a labour exchange where
  2  EWCA Civ 1068,  1 WLR 65.
  3 For example, T. Pitt-Payne, ‘Employment—The Shadow of the Past’ (2009) 159
  4The Bichard Inquiry Report, HC653 (2004), available at http://www.bichardinquiry.
  org.uk/10663/report.pdf, accessed 20 February 2012. This report was the result of a
  public inquiry into the circumstances of Ian Huntley ﬁnding himself employed in a
  position from which he could commit the Soham murders of Holly Wells and
  5 A. Mazzola, ‘Tainted Records’ Law Society Gazette, 19 August 2010, 6 at 7.
  6 N. Loucks, O. Lyner and T. Sullivan, ‘The Employment of People with Criminal
  Records in the European Union’ (1998) European Journal on Criminal Policy and
  Research at 195.
  7 T. Thomas, ‘Employment Screening and the Criminal Records Bureau’ (2002) 31
  Industrial Law Journal 55.
  Modern Criminal Vetting: Necessary Intrusion or Criminalising the Innocent?