Criminal record checks: filtering system ruled unlawful
Criminal Data base checks are undergoing major changes as a number of court case mean less serious or long-standing convictions are being filtered out, giving people with these issues more of a chance of finding employment.
The Court of Appeal decision in R (on the application of P and others) v Secretary of State for Justice and others is the latest case to challenge the disclosure to prospective employers of less serious offences, or offences that were committed a long time ago or when the offender was a minor.
In 2013, the Government amended the criminal record checks scheme to allow filtering out of single convictions for some offences. Since 2013, single convictions for non-violent, non-sexual offences that did not lead to a custodial sentence or a suspended sentence have been filtered out after 11 years (or after five years and six months if the offender was a minor at the time of the offence).
The changes were made after a number of cases in which individuals successfully argued that minor offences, or offences that they had committed in the distant past or when they were children, were preventing them from obtaining employment.
The case law culminated in a Supreme Court ruling that it was a human rights breach for the Disclosure and Barring Service (DBS) to lead to:
- an individual being unable to take a part-time role with a local football club over police warnings he received after he stole two bicycles when he was 11 years old; and
- a job applicant being prevented from working in the care sector because of a 2001 police caution for leaving a store with a packet of false nails for which she had not paid.
However, the amended rules provide that disclosure takes place when there is more than one conviction, regardless of the offence or circumstances. This “multiple conviction rule” was the subject of a further legal challenge. In R (on the application of P and others) v Secretary of State for Justice and others, two individuals whose convictions were not filtered because they had committed more than one minor offence successfully challenged the revised scheme in a judicial review application in the High Court.
The Court of Appeal has now ruled that the application of the multiple conviction rule in P’s case was disproportionate. The Court rejected the Government’s argument that a review mechanism for testing the proportionality of the disclosure in each case would not be feasible.
According to the Court of Appeal, it should be possible to introduce a filter that takes into account the nature of the offences and the length of time since convictions. An alternative suggestion from the Court of Appeal was a mechanism for review in specific circumstances, similar to the process for removal from the sex offenders’ register.
Christopher Stacey, co-director of Unlock, a leading charity for people with convictions that supported the legal challenge, commented: “Thousands of people contact us every year because they are being unnecessarily anchored to their past as a result of a criminal record disclosure system and DBS filtering process, which is blunt, restrictive and disproportionate. We’re delighted with the Court of Appeal’s ruling in this important case, which stands to affect many thousands of people with old or minor criminal records.
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For the full Personnel Today article on this change in employment law please follow this link.