Decision: The High Court has held that the current Criminal Records Disclosure Scheme (the “Scheme”) is incompatible with Article 8 of the European Convention of Human Rights, which provides that everyone has the right to respect for his private and family life, his home and his correspondence. The Court considered a challenge to the Scheme that had been brought by way of a judicial review by two applicants who had both been required by the Scheme to disclose to prospective employers in the teaching and finance sectors, details of convictions for two or more minor offences that had occurred many years ago. The key focus for the Court was on the exceptions to the disclosure of convictions rule, which provides that, in certain circumstances, all prior convictions are discloseable, regardless of the nature of the offence or how long ago it was committed. The applicants argued that the requirement under the Scheme to disclose their offences, which were minor, committed a long time ago and had no relevance to their employment today, demonstrated the arbitrary nature of the disclosure provisions which leave no room for discretion to be applied in any individual case. The Court held that there should be some mechanics in place to test the proportionality of an offence for the Scheme to be in accordance with Article 8. Moreover, the single conviction exception to lifetime disclosure, which was introduced in 2013 with the intention of alleviating some of the harsh effects of the Scheme, was considered by the Court to be arbitrary, disproportionate and therefore contrary to Article 8. In his judgment, Lord Justice McCombe said that “it was not justifiable or necessary for any individual to have minor offences disclosed indefinitely, from many years ago merely because there is more than one minor offence”. It was therefore held that there was no logical connection between the application of the Scheme to ensure suitability for employment, and the interference with the applicants’ Article 8 rights. The Scheme will require amendment to deal with this decision.

Impact: So, until such time as the government takes steps to amend the Scheme, where does this leave employers? Employers relying on DBS checks should ensure that, subject to any sector-specific guidance, they exercise careful, independent judgment in considering what weight to attach to disclosures which relate to old or trivial convictions. Employers should also consider the relevance of such convictions to the employment in question, particularly where the conviction is a spent conviction. As advised by Lord Justice McCombe, it is important to assess the factual background on a case-by-case basis, and to draw distinctions between the nature of the offence, the time elapsed, the disposal by way of sentence or otherwise and the absence of any independent review of a decision to disclose the offences. Employers, should, therefore, exercise a degree of perspective and judgment before rejecting a job applicant who has historic and irrelevant convictions. 

R (on the application of P) v Secretary of State for Justice