In the UK, a criminal records regime exists which seeks to strike a balance between respecting civil liberties and encouraging the rehabilitation of offenders on the one hand, and protecting the public on the other. Some previous criminal convictions are “spent” after a period of time, meaning that they do not have to be revealed to prospective employers. More serious crimes are never spent reflecting their gravity. Those looking to work with vulnerable adults and young people must undertake an enhanced criminal records check, which is now provided by the newly formed Disclosure and Barring Service (DBS). Such a check currently discloses all convictions and cautions which are then revealed to prospective employers, even those that are “spent”. However, proposals announced by the Government will permit some old and minor offences to be filtered out from checks by the DBS. This new checking system is due to be implemented within weeks, subject to Parliamentary scrutiny.
The announcement follows a recent Court of Appeal decision which involved three individuals. T, a 21 year old man of otherwise good character, discovered that police warnings, received when he was 11 in connection to stolen bicycles, were having a detrimental impact on his employment and study prospects when they were revealed following criminal record checks. JB was unable to get work caring for vulnerable adults because of a shoplifting caution received 10 years ago. AW’s conviction for manslaughter and robbery was sufficiently serious to be categorised as never “spent” under the existing system.
The Court of Appeal held that requiring the disclosure to prospective employers of all convictions and cautions relating to recordable offences, even those that are “spent”, is disproportionate. It therefore decided that the current system operated for criminal records checks is incompatible with the right to a private life under article 8 of the European Convention on Human Rights. It considered that the argument was particularly strong in relation to people who were children at the time of offending. As the Court stated in its judgment, it was a matter for Parliament to decide, in the light of the judgment, what amendments to make. However, it noted in the judgment that, for example, a filtering system could remove old and minor past convictions from people’s records.
It is proposed that old and minor cautions and convictions will no longer appear on criminal records checks undertaken by employers in relation to positions where the potential recruit will be working unsupervised with children and vulnerable adults. Adult cautions will be filtered from records after a period of six years, whilst those received by a young offender will be filtered after two years. Adult convictions resulting in a non-custodial sentence will be filtered after a period of 11 years, whilst such a conviction received as a young offender will be filtered after five and a half years. Some cautions and convictions will never be eligible to be filtered from criminal records checks, including serious violent and sexual offences, offences with a custodial sentence and multiple offences.
Many employers will welcome this move. The presence of an old and/or minor conviction or caution in the check may result in a candidate not being considered for a role, as employers often feel poorly placed to assess the relevance of such information and may err on the side of caution. Under the proposed changes, the Government is effectively making the judgment about what to filter out on behalf of potential employers.