The criminal-records regime – blanket disclosures incompatible with privacy

Today’s tabloids declaim that vulnerable people’s rights have been subordinated to those of criminals and that our school children are less safe today than they were yesterday. This is a predictable and hyperbolic response to the decision of the Court of Appeal, (R (T & ors) v Chief Constable of Greater Manchester and ors), handed down yesterday that blanket requirements for disclosures of spent criminal convictions and cautions in enhanced CRB (now DBS) checks breach the right to private and family life under Article 8 of the European Convention on Human Rights (ECHR). 

The decision related to three cases heard jointly: T, who is now 21 years old, had received cautions for the theft of two bicycles when he was a child aged 11 and JB, who also had received a caution for stealing false nails, eight years ago.  In these two cases the Court concluded that there had been a breach of the right to a private life.  In the third case of AW, who had received a custodial sentence for manslaughter and car-jacking, the Court ruled that the interference with her right to privacy was justified.

The ECHR provides a highly effective formula for balancing the rights of the individual with the interests of the state and, by implication, impose a check on the power of the state to interfere in individual lives.  It is not a prohibition on state interference, but requires that in a democracy, the state may only intervene where there is a legitimate interest to be protected and the protection afforded is proportionate to that aim.

The Court of Appeal readily accepted that the CRB regime pursued the legitimate aim of protecting vulnerable adults and children and enabled employers to assess the risks posed to those vulnerable groups by recruiting to relevant posts those with criminal histories.  The Court also concluded, however, that requiring disclosure of all convictions and cautions, irrespective of their relevance to the legitimate aim of protecting vulnerable people, was disproportionate. 

The Court noted that the Government had conducted an independent review of criminal records, which recommended that that a filtering mechanism should be adopted to remove minor and old convictions.  That the Government had not rejected that recommendation indicated to the Court that an alternative regime could be adopted that would be less disproportionate than the current requirement for blanket disclosures, irrespective of relevance to the protection of children and vulnerable adults.

The Court therefore declared the CRB/DBS checks regime to be incompatible with the right to a private life under the ECHR.  Consequently, it was necessary for Parliament to adopt a mechanism that balanced the rights of individuals with the legitimate need to protect vulnerable people.  The Court however stayed the effect of its judgment pending any application by the Secretary of State to appeal against its decision.

The current DBS checking regime is likely to continue to operate unless and until appealed, and if an appeal is unsuccessful, until legislation provides for an alternative regime. Nevertheless, institutions will need to apply their minds to the concept of proportionality when assessing the eligibility of applicants for posts or places on courses which provide access to children/vulnerable adults.  Where applicants are not barred from a regulated activity, but their enhanced checks reveal historic spent convictions or cautions, institutions will need to consider what relevance they have in making the recruitment decision.  However, it is not clear how an individual could challenge an employer’s decision to reject his/her job application on the basis of an irrelevant spent conviction disclosed following an enhanced check.  Applicants for places on courses on the other hand may challenge an institution’s rejection on human-rights grounds – viz. the denial of the right to education on the basis of the applicant’s status (i.e. someone with a conviction) that could not be objectively justified.

One last piece of advice...today’s fear-inducing headlines are like a good perfume, sniff them, but please don’t swallow them!

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
E: geraldine.swanton@sghmartineau.com
W: www.sghmartineau.com

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