The Court of Appeal has handed down a controversial judgment that the Government's current system for conducting criminal record checks is incompatible with an individual's right to respect for their
The Court of Appeal has handed down a controversial judgment that the Government's current system for conducting criminal record checks is incompatible with an individual's right to respect for their private and family life.
Other than where an individual has committed a serious crime, cautions and convictions only remain on an individual's record for a specific amount of time and then become 'spent' in accordance with the Rehabilitation of Offenders Act 1974. Once this happens, it is as though the conviction or caution has never been issued; the individual doesn't need to disclose it to potential employers and 'spent' convictions and cautions are not revealed by criminal record checks.
The notable exception is where the individual is seeking to work with at risk groups, such as children or vulnerable adults. In such cases, the conviction or caution is picked up by the enhanced criminal record check and it can affect the individual's ability to get a job.
This case itself focused on two individuals, T and JB, who had received cautions in the past for theft; T at age 11 in connection with two stolen bicycles and JB at age 40 when she was cautioned for leaving a shop without paying for a bag of false nails which she claimed was an honest mistake. Although the cautions were historic and were spent, they were picked up by the enhanced record check and affected both individuals in their professional lives. This was held to be an unlawful interference with their right to a private life.
The Court acknowledged the importance of protecting vulnerable groups but found the record check scheme was disproportionate to that aim. Instead of returning all spent and unspent convictions, there should be a more sophisticated filtering mechanism taking into account factors such as the age of the offender, the time since the offence and whether the individual had reoffended. It was unfair to expect employers to decide whether a historic offence was relevant to the employment sought. Employers were bound to err on the side of caution and the principles of rehabilitation of offenders would therefore be undermined.
It's not clear what will happen next, as the Home Office which administers the scheme is appealing the declaration of incompatibility.
However, the main concern with the Court's decision is whether any new system will be able to strike the right balance in protecting vulnerable individuals from former offenders. Much will depend on the way that any new record check scheme operates. The implication of the judgment is that the decision on whether a particular historic conviction or caution is relevant to the appropriateness of an appointment will move from employers to the Home Office. Some employers will see this as a welcome shift of risk but others an unwelcome loss of transparency.
Other than where an individual has committed a serious crime, cautions and convictions only remain on an individual's record for a specific amount of time and then become 'spent' in accordance with the Rehabilitation of Offenders Act 1974. Once this happens, it is as though the conviction or caution has never been issued; the individual doesn't need to disclose it to potential employers and 'spent' convictions and cautions are not revealed by criminal record checks.
The notable exception is where the individual is seeking to work with at risk groups, such as children or vulnerable adults. In such cases, the conviction or caution is picked up by the enhanced criminal record check and it can affect the individual's ability to get a job.
This case itself focused on two individuals, T and JB, who had received cautions in the past for theft; T at age 11 in connection with two stolen bicycles and JB at age 40 when she was cautioned for leaving a shop without paying for a bag of false nails which she claimed was an honest mistake. Although the cautions were historic and were spent, they were picked up by the enhanced record check and affected both individuals in their professional lives. This was held to be an unlawful interference with their right to a private life.
The Court acknowledged the importance of protecting vulnerable groups but found the record check scheme was disproportionate to that aim. Instead of returning all spent and unspent convictions, there should be a more sophisticated filtering mechanism taking into account factors such as the age of the offender, the time since the offence and whether the individual had reoffended. It was unfair to expect employers to decide whether a historic offence was relevant to the employment sought. Employers were bound to err on the side of caution and the principles of rehabilitation of offenders would therefore be undermined.
It's not clear what will happen next, as the Home Office which administers the scheme is appealing the declaration of incompatibility.
However, the main concern with the Court's decision is whether any new system will be able to strike the right balance in protecting vulnerable individuals from former offenders. Much will depend on the way that any new record check scheme operates. The implication of the judgment is that the decision on whether a particular historic conviction or caution is relevant to the appropriateness of an appointment will move from employers to the Home Office. Some employers will see this as a welcome shift of risk but others an unwelcome loss of transparency.