The Divisional Court has ruled (in R (P and A) v Secretary of State for Justice [2016] EWHC 89 (Admin)) that the criminal records disclosure scheme used in England and Wales is “arbitrary” and unlawful. This blog post considers the ruling from both a criminal and an employment law perspective. To give some context to the ruling, a brief summary of the statutory scheme for disclosing criminal records in England and Wales may be helpful.

Criminal records checks

Under the Rehabilitation of Offenders Act 1974, convictions, cautions, reprimands and warnings become “spent” after a certain period of time.An individual is under no legal obligation to voluntarily disclose to a prospective employer “spent” convictions, cautions, etc. However, if an individual applies for an “excepted position”, then the prospective employer is entitled to ask for details of both spent and unspent convictions, cautions and so on. Given the limits of voluntary disclosure (in that a prospective employer would be relying on the prospective employee to give honest disclosure) the employer will usually obtain such information by a criminal records check through the Disclosure and Barring Service (DBS).

“Excepted positions” are listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended). In general terms, these jobs relate to roles that involve regular contact with children or vulnerable adults.Three types of criminal records check are issued by the DBS: standard, enhanced, and enhanced with barred list. All three types of check provide details of convictions, cautions, warnings or reprimands held on the Police National Computer (PNC). The two types of enhanced checks also provide details of certain non-conviction information, for instance details of arrests recorded on the PNC.

Alterations to the statutory scheme

The above statutory scheme had been altered in 2013 following the judgments of the Court of Appeal and the Supreme Court in R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35.

The standard or enhanced certificates issued by the DBS used to list all the individual’s previous convictions. The revised scheme (implemented by The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 to address the Supreme Court’s ruling in 2013) created in effect a filtering process so that single convictions for non-violent, non-sexual offences that did not lead to a suspended or custodial sentence would not be disclosed after 11 years or five and a half years if the person was under 18 at the time of the offence. The new filtering process did not apply if a person had more than one conviction - regardless of the seriousness of the relevant offences or the circumstances in which they were committed.

The Divisional Court’s ruling in R (P and A)

The challenge in R (P and A) concerned this revised scheme and in particular the amended provision in section 113A(6) of the Police Act 1997. The claimants argued that “to set the bar at one single conviction is arbitrary and is not either "in accordance with the law" nor is it necessary or proportionate within the second limb of the test set out in article 8.2” (at [29]).

McCombe LJ, with whom Carr J agreed, declared that the revised scheme was unlawful under Article 8 (i.e. the right to a private and family life). After considering the Supreme Court’s ruling in R (T), McCombe LJ said that “when the rules are capable of producing such questionable results, on their margins, there ought (as it seems to me) to be some machinery for testing the proportionality of the interference if the scheme is to be "in accordance with the law"” (at [87]). McCombe LJ therefore held that it was not justifiable or necessary for any individual to have minor offences disclosed indefinitely simply because there is more than one minor offence on their records.McCombe LJ asked the government to make submissions to address the faults in the statutory scheme prior to the court making its final order. The scheme will continue to operate on the 2013 revised scheme basis until this final order.The Home Office are considering whether there are grounds to seek leave to appeal.

Analysis

The ruling of the Divisional Court is to be welcomed. The revised filtering scheme was blunt and disproportionate. In particular, the revised scheme continued to unnecessarily blight individuals who had the misfortune of acquiring more than one minor conviction. This is illustrated by the circumstances of one of the claimants in the present case - known as “P”.

P had been charged in August 1999 with shoplifting a 99p book. She had been bailed to appear before a magistrates’ court 18 days later, but failed to attend and was therefore convicted of a second offence under the Bail Act 1976. In November 1999, she was given a conditional discharge in respect of both offences.

P’s offences related to a very limited time in her life when she was suffering from an acute and undiagnosed mental illness. She now wishes to work as a teaching assistant and has sought voluntary positions in schools. However with each application she was required to disclose her two convictions.From a criminal justice perspective, such disclosure would seem to be unnecessary from the perspective of protecting vulnerable members of society (in this case children). Moreover, it is needlessly punitive. P was in effect prevented from rehabilitating.

From an employer’s perspective (particularly for those that recruit individuals into excepted positions) this case reemphasises the need to focus on other methods of assessing a candidates suitability for a role such as verifying qualifications, rigorously taking up and checking references and utilising probation periods, in addition to the usual criminal record checks. Arguably, in any event, such information is likely to be a more reliable indicator of the suitability of a candidate than spent convictions for more minor offences dating back many years.