Criminal record checks could infringe human rights, Supreme Court hears

Legal battle over disclosure of convictions to employers reaches top court

The current criminal records check system, which is used by employers when hiring for certain roles, disproportionately damages the chances of those with minor offences, according to a case currently being heard by the country’s top court.

The government is appealing a May 2017 Court of Appeal decision, which held that Disclosure and Barring Service (DBS) checks for individuals with multiple convictions and certain specified offences were contradictory to people’s right to private and family life under article 8 of the European Convention of Human Rights.

DBS checks are used by would-be employers to check job applicants’ criminal convictions. For certain roles, such as those involving work with children and vulnerable adults, DBS enhanced certificates used to list all an individual’s prior convictions. 

Following a 2013 Court of Appeal decision, the government introduced a filter which meant single convictions for certain offences for which the person was not given a custodial sentence would not be revealed to employers, provided the conviction was spent. A conviction is spent after a certain period of time passes, although the time period varies depending on the type of punishment given. 

However, this filter does not apply to people with more than one conviction, regardless of the nature of the crimes. 

According to figures from Unlock, a charity for people with convictions and an intervener in the case, more than one million youth criminal records have been disclosed in standard or enhanced criminal record checks carried out over the last five years. Meanwhile, more than 11 million people in the UK have a criminal record. 

“The current system has multiple, harsh consequences and damaging effects on individuals – in particular, it deters people from applying for employment, and for those that do apply it brings high levels of stress, anxiety and feelings of shame and stigma,” Christopher Stacey, co-director of Unlock, said ahead of the hearing. “It acts as an additional sentence that often runs for life. It desperately needs reform.”

Department for Work and Pension statistics, cited during the course of the Supreme Court hearing this morning, revealed 50 per cent of employers would not consider taking on ex-offenders, while 45 per cent of businesses believe ex-offenders may be unreliable employees.  

The legal challenge has been brought by three unnamed individuals – P, G and W – whose case was heard in the Court of Appeal of England and Wales, and one other woman, whose case was heard in the Court of Appeal for Northern Ireland.  

P was prosecuted for theft and failing to answer bail in the late 1990s, at a time when she was suffering from a then undiagnosed mental illness. Having not reoffended, she now wishes to work as a teaching assistant but is required to disclose her convictions and, subsequently, her previous mental ill-health. Not only does this cause her embarrassment, she believes having to reveal her past is costing her job opportunities.

The Supreme Court hearing is ongoing and is scheduled to run until Thursday. Judgment is expected to be reserved, meaning it will be delivered at some point in the future, rather than straight after the hearing.