Criminal Record Checks

Earlier this year we reported on a human rights case relating to an employer looking at an employee’s emails. There has now been another decision on the issue of the right to respect for private life, this time from the High Court and relating to criminal record checks.

The Rehabilitation of Offenders Act 1974 provides that individuals are not required to disclose information about previous “spent” criminal convictions. However, certain jobs, such as those which include working with children and Financial Conduct Authority approved positions are exempt from this, requiring those individuals to provide details of all criminal convictions, whether spent or not. The Disclosure and Barring Service (DBS) (or Disclosure Scotland, in Scotland) are able, upon application, to provide details of previous criminal convictions.

Previously, when applications for enhanced criminal record checks were made for exempt positions, all previous convictions and cautions, irrespective of how old or relevant they were to the position, would be disclosed. In 2012, this was found to have breached the right to respect for private life. This led to the introduction of a “filtering” system whereby single convictions for non-violent, non-sexual offences that did not lead to a custodial sentence or a suspended sentence, were filtered out and not disclosed after 11 years, or five-and-a-half years if the person was under the age of 18 at the time of the offence. However, this would not apply if the individual had received more than one conviction.

A couple of individuals pursued claims against the Justice Department following the disclosure of historic criminal convictions. The first, referred to as Ms P, tried to obtain employment as a teaching assistant. She was charged with shoplifting a sandwich and a book in 1999, valued at 99p, while suffering from an undiagnosed mental illness. She then failed to attend court and received a conditional discharge for the theft and breaching bail. The second, Mr A, was convicted of two minor thefts in 1981 and 1982 when he was 17 and 18. In his position as an accountant, company finance director and a project manager, he often needed to supply a criminal record certificate through the DBS. Both argued that having to disclose these convictions breached their right to respect for private life pursuant to the Human Rights Act, given the adverse impact it would, or could, have on their ability to secure work in particular professions.

The High Court had to decide:

  • whether the individuals’ right to respect for private life had been infringed upon; and, if so
  • whether that infringement was in accordance with the law; and, if so
  • whether that infringement was necessary in a democratic society.

The Judges decided that there had been an infringement of the individuals’ right to respect for private life. They also went on to find that, despite the fact that the legislation introducing the filtering system had been passed by both the House of Commons and House of Lords, it was still unlawful and, therefore, not in accordance with the law. The setting of an “arbitrary” limit on the number of convictions that someone was allowed before full disclosure was necessary left individuals with inadequate protection in relation to this particular right. The Court will decide on the sanction at a later hearing.

At this point in time, it is believed that the DBS process will continue as it is for now but, given the decision, it is highly likely to change. As to what that change will be, it is not clear. There might also be an argument that the use of the information provided by the DBS could give rise to a claim from an individual that their right to respect for private life has been breached if, for example, you were provided with details of Ms P’s convictions and rejected her job application on that basis, although such a claim could only be pursued against a public body.

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James Tamm

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