Criminal Records Checking Service Still Unlawful

The High Court has ruled that the criminal records checking system is still unlawful, despite changes made in April 2013.

Speedread

The High Court has ruled that the criminal records checking system is still unlawful, despite changes made in April 2013. The system which, for certain roles, provides disclosure of spent convictions once a person has two or more convictions irrespective of how old the conviction is, amounts to a disproportionate interference with the right to a private life. 

Background

The general rule is that a person does not have to disclose their criminal record once their conviction is spent and employers cannot ask for spent convictions to be disclosed. However, there is an exception to this rule for certain jobs, including those working with children and those needing FCA approval. For those jobs, a standard or enhanced criminal records certificate will reveal all previous convictions, no matter what the offence or when it was committed. However, in April 2013 a change was made so that a single conviction for non-violent, non-sexual offences which did not result in a custodial sentence or a suspended sentence is not disclosed after 11 years (or 5.5 years if the person was under the age of 18 at the time of the offence). However, where a person has more than one conviction they are always disclosed on a standard or enhanced certificate. It is this rule that was the subject of a challenge in R (on the application of P) v Secretary of State for Justice.

Facts

The applicants both had two convictions for theft committed many years previously. One was seeking employment as a teaching assistant, which was proving difficult due to her convictions. The other worked as a finance director and was concerned that he might in future be required to disclose his convictions. 

They sought a declaration that by requiring disclosure of all convictions for ever once a person has more than one conviction on their record, the criminal records checking system amounts to a disproportionate interference with the Article 8 right to respect for private life. They had minor convictions committed long ago which bore no relevance on their employment in any capacity today. This demonstrated the arbitrary nature of the disclosure provisions which left no room for discretion to be applied in any individual case. 

The Secretary of State argued that any requirement of independent review of individual cases would be burdensome and impractical.

Decision

The High Court granted the declaration. It considered that in many cases, rules requiring indefinite disclosure of certain serious offences will not be seen as arbitrary, as such offences will clearly be relevant to anyone considering a person’s suitability for a sensitive post requiring an enhanced criminal records check. However, when the rules are capable of producing such questionable results on their margins, there ought to be some machinery for testing the proportionality of the interference with the person’s right to a private life. There was no rational connection between the interference with the claimants’ Article 8 rights and the aim of ensuring suitability for employment for the remainder of their lives across the entire range of activities covered by the exception to the general rule that spent convictions do not have to be disclosed. 

The Home Office is considering whether there are grounds for appeal.

Implications

Employers who receive information about spent convictions (i.e. where the role falls within the exception to the general rule that spent convictions should not be disclosed) should not automatically rule out that candidate, unless there are sector specific regulations or guidance to the contrary. They should instead consider whether the conviction is relevant to the role, how serious it was, how long ago it was committed, the number of convictions, the circumstances surrounding the offence and any mitigating factors.