Successful challenge to the criminal records disclosure scheme

Two job seekers have been successful in a challenge to the criminal records disclosure scheme.

The Rehabilitation of Offenders Act 1974 introduced a system whereby convictions that are “spent” do not have to be disclosed in answers to questions, such as those from a prospective employer. A prospective employee is exempt from liability for failing to disclose such convictions. However, certain professions are excepted from the provisions of the Rehabilitation of Offenders Act 1974.

The Disclosure and Barring Service (DBS) (formerly the Criminal Records Bureau) supplies details of a job applicant’s previous convictions to prospective employers. For some occupations (including those working with children or vulnerable adults) the information provided by the DBS includes information about all convictions, whatever the offence, whenever it was committed. Following a Supreme Court judgment in 2013, the DBS operate a system by which single convictions for non-violent, non-sexual offences that did not lead to a custodial sentence or suspended sentence are filtered out after 11 years (or 5 years if the subject was under 18 at the time that the offence was committed).

Article 8 of the European Convention on Human Rights provides that everyone has a right to respect for private and family life, home and correspondence. There should be no interference with that right by a public authority except in accordance with the law, necessary in a democratic society.

Two applicants who were seeking work or already working within the teaching and financial services industry have been successful in a challenge to the criminal records disclosure scheme. Both applicants had been convicted of more than one relatively minor offence, the convictions having taken place sometime in the past. For one applicant, the disclosure of her previous criminal record could only be explained by revealing her medical history; the conviction for shop lifting having taken place when she had been suffering from undiagnosed schizophrenia.

The High Court decided that the system introduced in by the government in 2013 was inadequate and that changes to the legislation are needed in order to allow greater discretion. In the meantime, employers who operate in sectors where standard or enhanced DBS checks are required will need to ensure that (subject to any sector specific guidance) they exercise judgment in considering the weight to attach to disclosures, particularly where convictions are old or for more trivial offences.

R. (on the application of P) v Secretary of State for Justice [2016] EWHC Admin

29 January 2016

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