The Court of Appeal has today decided that the current Government scheme for issuing criminal records certificates is incompatible with article 8 of the European Convention of Human Rights (ECHR), which concerns the right to a private life.

Background

In the UK, as education institutions well know, 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. However, those looking to work with vulnerable adults and young people must undertake an enhanced CRB check, which is now provided by the new Disclosure and Barring Service. Such a check discloses all convictions and cautions which are then revealed to prospective employers, even those that are “spent”. It is this feature of the scheme which the Court of Appeal found to be objectionable. It held that requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate and, for example, a filtering system could, instead, remove old and minor past convictions from people’s records.

The facts

The litigation involved three cases which illustrate the difficulties raised by these issues in practice. 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 arguments

On behalf of the Government, it was conceded that the system requiring disclosure of convictions and cautions interferes with the right to a private life, but that it was justified for a number of reasons: it offers an important protection for employers and for the children and vulnerable adults in their care; it is clear and easy to understand; and the threshold for disclosure (that the individual had committed a criminal offence) was correctly drawn. In addition, it was argued that attempting to “filter out” old and minor convictions and cautions, whilst a long term aim, was practically difficult to achieve and would involve the expenditure of substantial additional resources in classifying offences and in establishing a viable filter mechanism.

The decision

The Court allowed the appeals of T and JB, granting them a declaration of incompatibility. T was also granted a declaration that the ROA Order is incompatible with article 8 and, therefore, ultra vires. AW’s appeal was not allowed.

Comment

While the Court of Appeal’s judgment supports the broad aims of the scheme, it decided that the current system operated for CRB checks is incompatible with article 8. It considered that the argument was particularly strong in relation to people who were children at the time of offending.

This decision will be a real blow to the Government which has only recently revamped CRB checks. In December, the newly formed DBS took over the functions of both the Criminal Records Bureau and the Independent Safeguarding Authority. As the Court stated in its judgment, it will be a matter for Parliament to decide, in the light of this judgment, what amendments to make.

Nonetheless, some institutions will welcome this judgment as they may feel poorly placed to assess the relevance of a old and minor convictions or cautions and would prefer the Government to make an informed judgment about whether to filter them out, as appropriate. As the court noted, employers do not always have the resources and training to fully weigh up and understand what is being presented to them when they receive criminal record checks and may simply decide to err on the side of caution.

The Court of Appeal’s decision is unlikely to be the end of the road for this issue as the Government has already indicated that it is seeking leave to appeal to the Supreme Court.