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The Supreme Court finds aspects of criminal record disclosure checks unlawful

Criminal record disclosure at work

The Supreme Court has recently rejected a Government appeal and upheld a Court of Appeal ruling in favour of a group of individuals who said they could not find work because the current statutory regime requires them to disclose old and minor criminal convictions.

The Law

There are currently two ways in which an employer can obtain details of an individual’s criminal record history. The first is by seeking voluntary disclosure (asking the individual directly about their history). The second is by means of a criminal record check through the Disclosure and Barring Service (DBS). Through the DBS, an employer can obtain a standard certificate or an enhanced certificate.

Not all criminal history, however, needs to be disclosed to an employer.

Under the Rehabilitation of Offenders Act 1974, if someone has been convicted of a criminal offence and they do not re-offend during a specified period from the date of conviction, they are considered rehabilitated and their conviction becomes “spent”. The general position is that these “spent” convictions do not need to be disclosed unless the post applied for is one that falls within one of the “excepted” occupations, offices and professions listed under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. These include professions (such as medics, lawyers, accountants, vets, chemists and opticians), those employed to uphold the law, certain regulated occupations (such as financial services), those who work with children, provide care services to vulnerable adults or who provide health services and those whose work means they could pose a risk to national security (such as air traffic controllers).

If one of the “excepted” cases applies then a person may be asked by an employer or prospective employer whether they have any spent convictions, as long as the questions are asked for the purpose of assessing their suitability for the occupation, office or profession. A failure to answer such a question will be a valid reason to withhold employment or to dismiss, as will a failure to give truthful information.

In addition, where “excepted” occupations, offices and professions are concerned, an employer can obtain disclosure through the DBS by means of a standard or enhanced DBS certificate of all spent and unspent convictions, cautions and reprimands. In the case of enhanced certificates, it is also possible to obtain “police information” – that is, any information which a chief officer reasonably believes to be relevant for the purposes for which the certificate is sought.

This regime (supplemented by Codes of Practice and Guidance on managing police information) however, has been challenged in the UK courts as being incompatible with Article 8 of the European Convention on Human Rights (ECHR) in this long-running case which has now gone to the Supreme Court.

Article 8 provides for the right to respect for private and family life. However, this is a qualified right and therefore the state may interfere with that right as long as this is “in accordance with the law and…. necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

The Facts

The case was originally brought against the government by four individuals with minor historic criminal convictions who argued that the disclosure of their criminal records to potential employers had made it more difficult for them to obtain jobs. In each case, although the relevant convictions and cautions were “spent”, because the individuals were applying for jobs or employed in jobs which involved working with children or vulnerable adults, they had to be disclosed. All four individuals (who were not named for legal reasons) challenged the rules under which disclosure of their records was required as being incompatible with Article 8.

Of the four individuals, one had received a caution for the theft of a sandwich from a shop in 1999 and then shortly afterwards received a subsequent conviction for theft of a 99p book and for failing to surrender to the bail granted to her. At the time she was suffering from undiagnosed schizophrenia. She received a conditional discharge for both offences and subsequently committed no further offences. However, after qualifying as a teaching assistant, she was unable to find employment and believed this was because she was obliged to disclose her convictions on each job application.

Another individual was arrested at the age of 13 for sexually assaulting two younger boys. The police records indicated it was consensual and carried out as “dares” and “experimentation” on the part of all three boys. The individual received a reprimand in 2006 and had not offended since. Then, when working as a library assistant in a local college, he was required to apply for an enhanced criminal records check because his work involved contact with children. The police proposed to disclose the reprimand, as a result of which the individual withdrew his application and lost the job. He subsequently felt unable to apply for any job requiring an enhanced criminal records check.

The case before the Supreme Court concerned an appeal by the Government against an earlier finding, by the Court of Appeal, in favour of the claimants, that parts of the statutory scheme for disclosing of criminal convictions infringed Human Rights legislation.

The Decision

The Supreme Court Justices identified that the case was a difficult and sensitive one that involved two competing public interests – the rehabilitation of ex-offenders and the protection of the public against people whose past record suggests that there may be unacceptable risks in appointing them to certain sensitive occupations.

It was decided, by a majority of the Judges, that the statutory schemes for the disclosure of criminal convictions were lawful and proportionate except in two respects.

The first was in relation to the rule that, where a person has more than one conviction of whatever nature, all convictions must be automatically disclosed in a criminal record certificate – irrespective of the nature of the offences, their similarity, the number of occasions involved, or the intervals of time separating them. The Judges held that this rule could not be regarded as a necessary or proportionate way of disclosing criminal records indicating a tendency to offend.

Secondly, the Judges said that the statutory scheme was disproportionate in the way it dealt with warnings and reprimands given to young offenders. They considered that such warnings and reprimands had a wholly instructive purpose and their use as an alternative to prosecution was designed to avoid any damaging effect on the young offender’s subsequent life. It followed that disclosure to a potential employer would be inconsistent with that purpose.

Points to Note

The case serves as a useful reminder of the statutory scheme regarding criminal records checks and the law on spent convictions. Unless an exception applies (e.g. the role involves working with children), spent convictions don’t have to be disclosed and it is unlawful to refuse to offer someone a job or dismiss an employee for failing to reveal a spent conviction. Although there is no specific penalty for breach of this prohibition, dismissal of an employee on discovery of a spent conviction could lead to a claim for unfair dismissal if the employee has acquired sufficient service to bring such a claim (2 years).

In addition to this legislation, employers also need to be mindful of the need to comply with data protection law as regards processing information about the commission, or alleged commission, of criminal offences. This information is personal data and cannot be processed unless there is a lawful basis for doing so under the General Data Protection Regulation (GDPR). Where there is a lawful basis, an employer must process the information in accordance with the data protection principles, including that processing should be adequate, relevant and not excessive.

Action to take

1. Make it clear early on in your recruitment processes if vetting is going to take place and how this will be done (to meet GDPR requirements).
2. Comprehensive pre-employment vetting should only be undertaken for those selected for the job.
3. Information on criminal convictions should only be sought if it is relevant to the job that is being filled.
4. Unless the role is one covered by an exception, you can only take unspent convictions into account.
5. If you find out that an applicant or employee has a criminal record and are not sure how you should deal with this information, please contact us as we will be happy to assist you.

Case reference:

R (on the application of P) v Secretary of State for the Home Department [2019] UKSC 3

This article was written and researched by Miranda Amos, Solicitor at our Salisbury Office.  Miranda advises clients across Hampshire, Wiltshire and Nationwide.

 Miranda is the firms expert on maternity, pregnancy and parental rights. If you have any questions or concerns about the proposed changes or any issues in your business please do get in touch with Miranda directly!

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.

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