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Employment Law

Legal guidance - compliance - software

Guildhall Chambers , 12 JUL 2013

Criminal records checks: an uncertain future?

Criminal records checks: an uncertain future?
Debbie Grennan

Despite extensive recent changes, the system for criminal record checks remains in a state of flux. Debbie Grennan considers what the future holds and whether the latest proposals are really fit for purpose.

The Rehabilitation of Offenders Act 1974 provides that an applicant for employment is under no obligation to reveal a spent conviction and that it is unlawful for an employer to reject an application on the ground that the individual has such a conviction. However, there are some areas of employment which are exempt from these general rules. Where such exemptions apply, employers are entitled to seek information about spent convictions and take the results into account in making recruitment decisions. Currently, when a request for a criminal record check is made and a certificate provided, details of all convictions and cautions are included.

The Disclosure and Barring Service (‘DBS') has issued Guidance for Employers, as well as a Code of Practice and a Specimen Policy on the Recruitment of Ex-Offenders. However, not one of these documents helps employers to determine how the information disclosed on a DBS certificate should inform the recruitment decision. As a result, there is a common perception that a negative DBS check will almost certainly result in the applicant being rejected without any real consideration of whether the spent conviction has any impact on current suitability for the post.

It has been clear for some time that significant changes are required to the system. In 2010, the Criminal Records Review was established to examine the existing regime and consider whether it struck the right balance between respecting civil liberties and protecting the public. The expectation was that the system would be scaled back to ‘common sense levels.'

The Review's report, published in 2011, recommended just that. Some changes were effected by the Protection of Freedoms Act 2012. However, one of the key recommendations not put into effect by that Act was the introduction of a filter to remove information relating to old or minor convictions and cautions, where appropriate, from the system.

The Independent Advisory Panel for the Disclosure of Criminal Records (‘IAPDCR') was set up to consider the design of a suitable filtering system. However, it was unable to agree a mechanism for implementation, the tension being between a desire to have a simple, automatic filtering process based on set rules, with a need to have flexibility to include information which would otherwise be filtered, where appropriate.

The end result was that nothing was done to implement a filtering system. The issue was then brought to a head in January 2013 as a result of the CA judgment in R (on the application of T) v Chief Constable of Greater Manchester and others [2013] EWCA Civ 25. This followed an earlier Chamber judgment of the European Court of Human Rights in MM v United Kingdom (Application No 24029/07) HEJUD [2012] ECHR 1906 in which it was held that the lack of sufficient safeguards as to the retention and disclosure of data relating to a police caution some years earlier, violated the individual's Art.8 right to respect for her private and family life.

The CA judgment concerned judicial review proceedings in which three individuals challenged the existing blanket disclosure system as being in breach of Art.8. The CA upheld two of the three claims (those relating to T, a 21 year old who had received two warnings in connection with stolen bicycles at the age of 11; and to JB, a woman who had received one caution for low-level shoplifting in 2001).

It was conceded that the disclosure regime was capable of interfering with Art.8 rights. The key issue was whether such interference could be justified under Art 8(2). While the CA found that the aims of protecting employers and particularly children and vulnerable adults, and of enabling employers to assess suitability for a particular kind of work were legitimate ones, the regime of blanket disclosure of all convictions and cautions for recordable offences was disproportionate and unlawful.

Lord Dyson MR noted that:

‘... The fundamental objection to the scheme is that it does not seek to control the disclosure of information by reference to whether it is relevant to the purpose of enabling employers to assess the suitability of an individual for a particular kind of work.'

He went on to state that in determining relevance, the following factors should be taken into account:

  • the seriousness of the offence;
  • the age of the offender at the time of the offence;
  • the sentence or other manner of disposal;
  • the lapse of time since the offence was committed;
  • whether the individual subsequently re-offended; and
  • the nature of the work the individual wishes to do.
The CA directed that its decision would not take effect pending determination by the Supreme Court of an application for permission to appeal. The application has yet to be determined. The CA's declaration of incompatibility is, in effect, suspended and at present, the old regime continues to apply.

The CA decision has forced the Government to finally put forward a statutory filtering scheme. The proposed scheme provides as follows:

  • Convictions will be removed if: (i) 11 years have elapsed since the date of the conviction; (ii) it is the person's only offence, (iii) it did not result in a custodial sentence; and (iv) it does not appear on the list of specified offences. If a person has more than one offence, details of all convictions will always be included. The period is reduced to 5.5 years for offences committed by minors, subject to the same conditions.
  • Cautions will be removed if: (i) 6 years have elapsed since the date of the caution; and (ii) it does not appear on the list of specified offences. The period is reduced to 2 years for minors.
We await further details as to what will be on the list of specified offences. Indications are that it will comprise ‘serious violent and sexual offences.' There are bound to be important questions as to exactly where the line should be drawn.

However, even at first glance, there are a number of fundamental problems with these proposals. For example:

  • If an individual has more than one conviction, then irrespective of all other factors, every conviction must be disclosed. Thus, an individual aged 30 who received two convictions for minor criminal damage at the age 11 and who had not reoffended since then would still find those convictions disclosed. Is this situation so very different from the case of T?
  • What is the position of an individual who is convicted of more than one offence arising out of the same incident and which were dealt with as part of the same criminal process? It would seem that irrespective of all other factors, all offences would have to be disclosed.
  • While the proposals incorporate some of the CA's guidelines as to the proportionality of the disclosure regime, they take no account whatsoever of the relevance of the conviction or caution to the job in question.
  • A concern for the ECHR in MM v UK was the lack of any mechanism for an independent review of, or challenge to, the retention and disclosure of criminal record information. The current proposals do not deal with this.
These proposals have been put forward within weeks of the CA judgment being delivered. Further, it has been indicated that these proposals will be implemented within a week of completion of Parliamentary scrutiny. However, any meaningful process of scrutiny would surely highlight the clear deficiencies with even the basic principles behind the current proposals, let alone the detail which we have yet to see.

At the core of any balancing exercise between the right to privacy and the protection of the public must be the establishment of a precise and well-elaborated proportionality test. Drawing up a suitable and truly proportionate filtering system will be no easy task but a knee-jerk reaction is not the answer. This will only result in further challenges by individuals who continue to be haunted by their pasts.
This article was first published in ELA Briefing, Vol.20 No.5 (June 2013), at p.14.
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