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Criminal record checks and the right to private and family life

18/06/2014
The Supreme Court has today determined that the UK's current process for criminal records checks is incompatible with the right to respect for their private and family life.  This confirms the Court The Supreme Court has today determined that the UK's current process for criminal records checks is incompatible with the right to respect for their private and family life.  This confirms the Court of Appeal's earlier decision, reported in our blog.

Disclosing convictions, cautions, warnings and reprimands

Other than in the case of extremely serious criminal offences, most convictions are 'spent' after a specified period of time (in the case of cautions, warnings and reprimands, they are spent immediately after being given). Spent convictions do not need to be disclosed to employers and, where an employer is aware of a spent conviction, they are not entitled to make any decisions (such as to deny employment) on the basis of a spent conviction or a failure to disclose.

However, in cases where the individual is seeking to work with children or other at risk groups, then employers are entitled to take account of spent convictions and there is also a disclosure obligation on the individual.

Convention Rights

The European Convention for the Protection of Human Rights guarantees the right to private and family life. This is a limited right and can only be infringed where the interference is: (1) in accordance with the law; (2) necessary in a democratic society for certain prescribed reasons, including public safety and the prevention of crime.

The current case

In the case before the Supreme Court, T had received a warning when he was 11 in connection with the theft of a bicycle. This warning was disclosed twice as part of a CRB (now DBS) check: first when T was 17 and again when he was 19. In each case the spent warning was disclosed on the basis that the activity might bring T into contact with children.

JB was issued with a caution (as an adult) in connection with the theft of a pack of fake nails (which was claimed to be accidental). Eight years later, JB completed a training course intended to later find her placement within the care sector but, when the spent caution was disclosed, was denied the opportunity to be put forward for work in the care sector.

T and JB claimed that the disclosure of the spent warnings and cautions breached their Convention rights.

The Supreme Court agreed.  Interference with Convention rights had to be in accordance with the law. As UK law required all spent convictions to be disclosed indiscriminately, the interference with the right to private life was not in accordance with the law and was disproportionate. Further, the interference with the right was not necessary in a democratic society. The Court particularly focused on the fact that the legislation was not rational in the means it was choosing to meet its ends: for example, requiring T to disclose a childhood misdemeanour could not sensibly achieve the required end, to protect children. The impact on requiring JB to disclose an incident showing minor dishonesty years later also had a disproportionate impact on JB compared to the intended aim of protecting those in need of care.

As such, the declaration of incompatibility put into place by the Court of Appeal was maintained by the Supreme Court. The criminal record check regime was reviewed following the Court of Appeal Judgment and more limited rules were introduced in June 2013 regarding the disclosure of spent convictions. The Supreme Court noted the change in law but refrained from commenting on whether they considered the revised legislation to also now be compatible with Convention rights.

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