Criminal record disclosure scheme infringes human rights, Supreme Court rules

Failed government appeals could lead to ‘crucial’ system reform preventing workers being ‘unnecessarily anchored to their past’ 

The way workers’ criminal records are disclosed to employers infringes their human rights, the Supreme Court has ruled.

In particular, the court rejected as “disproportionate” the blanket rules requiring automatic disclosure of all convictions where a person has more than one, and the requirement that some childhood cautions be disclosed indefinitely.

Experts have said the ruling could affect thousands of people who have old or minor criminal records.

The landmark judgment upholds previous rulings by the High Court (2016) and the Court of Appeal (2017) that the Disclosure and Barring Service (DBS) scheme was “not in accordance with the law”, since it breached the right to a private life, stipulated by article 8 of the European Convention on Human Rights.

Judges rejected government appeals over three cases brought against the Home Office in which the claimants argued the DBS system was hindering their rehabilitation.

The cases included of a woman convicted of driving without wearing a seatbelt who was fined £10. Another, named only as P, received a caution for the theft of a sandwich from a shop. In the same year, P was convicted of the theft of a book worth 99p while homeless and suffering from undiagnosed schizophrenia. 

The third case involved an assault that occurred during a fight after school when the individual was 16 years old. He received a conditional discharge, and has not offended since, though believes his career has been blighted by the event.

The court said the rule for disclosing multiple convictions was “capricious”, describing the inclusion of youth warnings and reprimands as part of the disclosure scheme as an “error of principle”.

Christopher Stacey, co-director of Unlock, a charity for people with convictions, said the judgment would affect “many thousands of people with old and minor criminal records who have been unnecessarily anchored to their past”. “The current regime acts as an additional sentence that often runs for life. It desperately needs reforming,” he said

“While certain offences clearly should be disclosed to employers, it is plain common sense that a fair system should not unnecessarily blight the lives of people who are trying to get on in life by disclosing old, minor and irrelevant information which holds them back and stops them from reaching their potential.”

According to the charity, in the last five years over one million youth criminal records were disclosed on standard or enhanced criminal record checks that related to offences from more than 30 years ago. 

Stacey added: “Today is a crucial step towards achieving a fair and proportionate filtering system that takes a more calibrated and targeted approach towards disclosing criminal records. It is now time for the government to act. We strongly urge the government to take prompt and considered action on the filtering system, as well as committing to carrying out a fundamental review of the wider criminal records disclosure regime.”

Matthew Howse, employment partner at Morgan Lewis, welcomed the rulings but said it was important to remember they only relate to the enhanced criminal records regime that applies to specific jobs, including those involving children and vulnerable adults as well as other sensitive roles.

“This is an important and welcome decision which will have a material impact on people’s lives and careers,” he told People Management. “The onus is now on the government to decide how to implement the necessary changes to the system to give effect to the Supreme Court’s ruling and whether they will carry out a more wide-ranging review on the criminal records checks system.”

Mike Pemberton, partner and head of human rights at Stephensons, said: “Having been involved in cases referenced in [yesterday’s] judgment, I welcome the findings that the filtering of previous convictions and cautions still fails to provide adequate safeguards to individuals in respect of their right to rehabilitation and their ability to move on with their lives.

“The decision makes an important distinction between minor offences, both in respect of lack of seriousness and the age of the offender, and more serious types of offence where public protection requires disclosure of the matter.”