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Criminal records disclosure scheme is ‘infringement of human rights’

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Alice Sanderson, February 01, 2019

The government will have to consider reforming how criminal records are disclosed to employers, following a ruling by the Supreme Court (pdf).

Three people, all of whom have been granted anonymity, said that their minor criminal convictions from many years ago were blighting their current lives.

Supreme Court judges found that the way criminal records are disclosed to employers is an infringement of human rights.

Disclosures related to 30-year-old offences

Unlock, a charity for those with convictions, said that the ruling could benefit thousands who have old and minor criminal records.

Co-director of Unlock, Christopher Stacey, said that many are left “unnecessarily anchored in their past” by criminal checks.

According to Mr Stacey, more than a million youth criminal records were disclosed on standard or enhanced Disclosure and Barring Service (DBS) checks in the past five years, which related to offences from more than 30 years ago.

Disproportionate

In 2017 a Court of Appeal judgment backed a previous finding by the High Court in 2016, which said that the criminal records disclosure scheme was “not in accordance with the law” within the meaning of Article 8 of the ECHR, which protects the right to private life.

Following the 2017 ruling, the government challenged this decision, which resulted in the recent hearing in the Supreme Court.

In the latest ruling on Wednesday 30th January, the Supreme Court justices found that the scheme was “disproportionate” in two respects:

  • All previous convictions should be disclosed, however minor, where the person has more than one conviction.
  • All warnings and reprimands issued to young offenders must be disclosed.

Differentiation between children and adults

One of the cases was brought to the court by children’s charity Just for Kids Law, who argued that DBS checks fail to treat children differently to adults.

CEO of Just for Kids Law, Enver Solomon, said: "We are proud to have secured a landmark judgement that will benefit thousands of children issued with cautions each year, a shockingly disproportionate number of whom are from black and minority ethnic backgrounds.

"There is now an overwhelming view shared by the higher courts and MPs that the government should act immediately to ensure no child who is given a caution ends up with a criminal record that stigmatises them for life."

Barrier to rehabilitation

The Justice Committee, which published an inquiry in July 2018, welcomed the ruling.

Bob Neill MP, chair of the committee, said the current system for disclosure is "inconsistent with the aims of the youth justice system, with mistakes made as a teenager able to follow someone around for decades, creating a barrier to rehabilitation, and preventing large numbers of people from gaining access to employment, education, and housing".

Mr Stacey from Unlock, urged the government to carry out a fundamental review of the wider DBS system and to take “prompt and considered action”.

He said: "Today is a crucial step towards achieving a fair and proportionate filtering system that takes a more calibrated and targeted approach towards disclosing criminal records."

Comment

Spokesperson for First4Lawyers, Andrew Cullwick, said: “It’s right that the Supreme Court should recommend the need for reform in the current system for disclosing criminal records.

“It is important that employers are aware of the history of their employees where relevant, but a caution upon a teenager should not affect them for the rest of their life. If anything it will make them more likely to offend if they are unable to find a job.

“We hope that the government takes note of the judgment and reforms the system to differentiate between child and adult offences, and to prevent minor offences, especially cautions, from having a major effect on job applicants.”