The High Court has held that the current UK criminal records
disclosure scheme is incompatible with Article 8 of the European Convention of Human
Rights “ECHR” – the right to respect for private and family life. The
problem relates to the fact that for certain employment types all prior
convictions must be disclosed, regardless of relevance, triviality or how old
they are.
To give a quick recap of the disclosure scheme…
If a job is covered by the Exceptions Order (for example
working with children), the employer may ask the individual to disclose any
past convictions and is entitled to ask for a standard or enhanced disclosure
and barring service “DBS” check. In 2013 this was amended so if an applicant
had only one conviction in total, relating to a non-violent/non-sexual crime
which did not lead to a custodial or suspended sentence, then after 11 years
(or 5½ years if the offence was committed when the individual was under 18) it
would not be disclosed.
The issue highlighted by this case is that there is no such
filter if there is more than one conviction, regardless of the type of
convictions or the time which has elapsed. This case, R (on the application
of P) v Secretary of State for Justice (2016) was brought by Claimants who both had two minor convictions in
the 1980s/1990s.
Both Claimants argued that the prior convictions had no
relevance to their current employment status. In legal terms, it was held that
the disclosure scheme in the UK fails the necessity and legality test under
article 8(2) ECHR.
The case highlighted that the DBS scheme can have a
disproportionate interference with an applicant’s private life. Further,
someone with one conviction for something more serious may fall below the bar
whereas those with two convictions for minor offences may not.
Until the government addresses
this judgment, employers that require standard or enhanced DBS checks should
ensure that they exercise judgment when considering the weight to attach to old
or trivial convictions.
Camilla Beamish
