The High Court recently ruled the present system for disclosure of criminal records to be “unlawful”. This will be a disappointment to the Home Office as the Disclosure and Barring Service (“DBS”) was only introduced in 2013, replacing what was previously known as the Criminal Records Bureau (“CRB”). I summarised and commented on the new system back in 2013.

Along with the new “update service”, the DBS introduced a filtering system. This filtering process was designed to satisfy the human rights deficiencies contained within the old CRB checks, as identified by a 2013 Court of Appeal Ruling. The old system operated as a blanket CRB disclosure, automatically informing certain employers of all convictions and cautions, regardless of relevance or time-lapse. The new filtering system was designed to lessen the offence caused to an individual’s human rights.

Whilst press reporting states that the current system has been rendered “unlawful”, it is in fact the degree of filtering which appears to be in issue. The High Court considered recent examples of disclosure of minor theft convictions dating back some 20 years. Certain offences will never be filtered; most of which are violent offences, sexual offences, or those involving children or vulnerable adults. Those that are capable of being filtered however, will only be caught if:

  • 11 years have passed since the date of conviction, and
  • It is the person’s only offence, and
  • It did not result in a custodial sentence.

The issue highlighted by the recent High Court ruling is that where there is a second conviction, however minor and however historic, both those convictions fall to be disclosed – even where the second conviction relates to the same set of facts. The gaps in the net are too large leading to arbitrary results.

There is a strong proportionality argument in support of the recent ruling. Rather than approaching the filter as a ‘yes or no’ tick-list, the filter could be viewed as more akin to the decision made by a judge in a bad character application: what were the dates of the offences? Are they relevant to the job for which the applicant has applied? In parallel to the propensity argument, do the convictions make it more likely that there is a risk of the applicant re-offending? The implication of a more rigorous test will of course be unpopular with the government; it would require increased manual scrutiny of applications rather than a computed response. It is difficult to see how a just result can be achieved through a binary test. Where there is the presence of mental health issues, for example, it must surely be appropriate to apply discretion.

Whilst, in the final stage, the present system does in some instances offer an opportunity for representations to be made by the applicant in opposition to disclosure, this process is evidently not operating effectively. Arguably, the Chief Officer of the police force holding the relevant conviction information is not best placed to make such a determination either; an independent person on behalf of the DBS might provide a more impartial, holistic assessment. It is therefore essential that the filter operates fairly in the first instance, acting as a shield for those cases which should not even reach the representation stage.

The Home Office is reportedly considering whether to appeal the High Court decision.