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Criminal record checks – too much disclosure?

Following the ruling in R (on the application of T) v Chief Constable of Greater Manchester and others (2013), the Government is set to challenge the Court of Appeal’s decision that it is a breach of human rights to require people to disclose criminal convictions to certain employers.

The legal position

According to the Stuart criminal attorney, currently the Police Act 1997 allows employers to make criminal record checks before recruiting an applicant, to see if they are suitable for the job.

In terms of the Rehabilitation of Offenders Act 1974 criminal convictions, cautions, warnings and reprimands in respect of certain offences are deemed to be “spent” after certain time periods (Highly recommended criminal defense law firm from Florida). Once a conviction is spent, the person is treated as if he or she had never committed the offence and it does not need to be disclosed to an employer.

Some sentences never become spent, however, including sentences of imprisonment or detention in a young offender institution for a term of 30 months or more.

Furthermore, it is lawful for employers to ask about spent convictions and to reject applicants on the ground of a spent conviction in certain circumstances, e.g. if contact with children or vulnerable adults is involved in the job.

The case

In the above case, three individuals challenged the rules on employee background check on the basis that they are contrary to the right to respect for private life under Article 8 of the European Convention on Human Rights:

  • In 2008, T’s police warnings that he received for stealing two bicycles aged 11 were revealed when he applied for a part-time job at his local football club, then aged 17.
  • JB received a police caution for leaving a shop without paying for a packet of false nails in 2001. In 2009, her caution was revealed when applying for jobs in the care sector.
  • In 2003, AW took part in a carjacking with her boyfriend aged 16. Her boyfriend also stabbed the driver of the car. She was given sentences of five years’ detention for manslaughter and four years’ detention for robbery. Her convictions will never be spent under the current rules, which prevent her from pursuing a career in the army.

According to Criminal Lawyers, The Court of Appeal accepted that there had been an interference with the rights of T and JB although not AW’s (because of the seriousness of her convictions).

It was accepted that in this context Article 8 has:

  • The general aim of protecting employers and, in particular, children and vulnerable adults who are in their care; and
  • The particular aim of enabling employers to assess whether or not an individual is suitable for a particular kind of work.

However, the Court of Appeal held that the disclosure scheme is disproportionate to that legitimate aim. This was because the Court of Appeal did not consider there to be a proportionate filtering scheme to ensure that only crimes of sufficient seriousness were disclosed.

Implications for employers

  • Should the Government not succeed in appealing this decision to the Supreme Court, it will have to reform the public records checks system.
  • The new system would have to filter records before they are disclosed to employers to take account of the circumstances of convictions (for example, the age of the offender, time period since the offence and the nature of the crime).

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