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02nd March 2016

The current criminal record disclosure scheme – a breach of Human Rights?

In the recent case of R (on the application of P) v Secretary of State for Justice, the High Court held that certain criminal record checks are contrary to the European Convention of Human Rights (ECHR).

When it comes to disclosing criminal convictions, the general rule is that employees do not have to disclose their past criminal record to their employers, if the criminal conviction is "spent". There are, however, certain exceptions to this rule. If an employee is going to be working in a certain sector, for example, if they shall be working with children or vulnerable adults, an employer will have authority to undertake criminal records checks in respect of its employees and potential employees.

In these circumstances, the criminal record check will list the individuals’ full criminal history. If the offence was non-violent, non-sexual and did not lead to a custodial sentence or a suspended sentence, these offences will be filtered out after 11 years, or five-and-a-half years if the person was under the age of 18 at the time of the offence. However, if the offence was committed more recently, regardless of the nature of the offence or the circumstances of it, the offence will be disclosed on a criminal record check. Further, if a person has more than one conviction, these convictions will always be disclosed.

In the case of R (on the application of P) v Secretary of State for Justice the claimants challenged the criminal record check scheme arguing that it is disproportionate and contravenes Article 8 of the ECHR, the right to respect for private and family life. The applicants, Ms P and Mr A, both claimed that the criminal records disclosure regime meant that their past, minor criminal histories unfairly disadvantaged them when seeking employment.

In Ms P’s case, she had a criminal record dating from 1999. She was convicted of shoplifting a book that was worth 99p. At this time Mrs P was suffering with schizophrenia and as a result she failed to surrender for bail. She was, therefore, convicted of two offences, the theft and failing to surrender for bail. As she has two convictions, Mrs P’s full criminal history is disclosable upon a criminal records check, despite the fact that they were only minor in nature and happened over 15 years ago. Ms P wanted to work as a teaching assistant and whilst she had obtained some voluntary posts, had not been able to secure paid employment. Mrs P claimed that the requirement for her criminal convictions to be disclosed had prevented her from getting paid work as a teaching assistant.

Mr A was convicted of two separate counts of theft in the early 80s. He had no subsequent criminal history but was caught by the requirement for lifetime disclosure because he had more than one conviction. Mr A works as a finance director and project manager and he was concerned that at some stage, due to the nature of his role, the Financial Conduct Authority aspects of the criminal record check scheme could come into play, in which case his criminal history would have to be disclosed and he could be prejudiced.

As both claimants only had minor convictions, committed long ago, which did not have any relevance to their employment, they claimed that the current disclosure scheme was arbitrary, and that the requirement for lifelong disclosure where an individual has more than one conviction is disproportionate.

The Judge agreed with Ms P and Mr A and found that the current scheme did contravene their right to private and family life under Article 8 of the ECHR. The claimants’ cases showed that the rules under the current scheme could produce unfair results and that in their cases there was no rational connection between the interference with their Article 8 rights and ensuring they were suitable for a certain role. The Judge suggested that a proportionality test should be introduced when considering how the scheme interferes with an individual’s Article 8 rights. However, no further guidance was given on this.

The Secretary of State has suggested that it is considering appealing against this decision. In the meantime, employers that routinely undertake criminal records checks shall need to be careful about how they deal with results that show previous convictions. Unfortunately, until this matter is concluded, the burden of applying proportionality in respect of any results disclosed on a criminal records check has been passed to the employer.

For more information please contact Gemma Hill on 01604 463309 or click here to email Gemma.

If you would like to know more please visit our Employment Law page.

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