Criminal Records Checks Trumped by Human Rights

28 Feb 2019

Employers should be aware when they receive an Enhanced DBS check they may be given extremely sensitive information which shouldn’t have been released and which they shouldn’t use.

In 2015, the Supreme Court said the statutory scheme for the disclosure of convictions, cautions and reprimands as it then stood was an unlawful interference with an individual’s right to respect for private life. The scheme was modified. Now the Court has revisited the same territory in a judgement given on 30 January. By a majority, it found the criminal records disclosure scheme is still incompatible with the Human Rights Act.

Background to the court decision

The Court considered four cases. In each case information was disclosed which raised concerns for the individual’s employment prospects.

Case 1: a check revealed a conviction in 1996 for driving without a seatbelt and three counts of carrying a child under 14 without a seatbelt. Then in 1998 there was a further conviction on two counts of carrying a child without a seatbelt.

Case 2: a check disclosed conviction in 1998 for theft of a sandwich followed later that year by a conviction for theft of a book worth 99p and failing to surrender to bail in that case.

Case 3: a teenager was convicted of assault following a school boy fight in 1982.

Case 4: a teenager was reprimanded for sexual assault in 2006 in circumstances where there was exceptional mitigation and no prosecution.

 

In all four cases the Supreme Court decided the information should not have been revealed. This means effectively that it should not have been relied on to employers either.

Therefore the legal position still isn’t clear because in cases of enhanced disclosure, the law says a Chief Constable may reveal information which he thinks ought to be disclosed even if that information is not in one of the defined categories triggering disclosure. It also says (in the Police Act 1997) that where a person has more than one conviction (of whatever nature) the mere fact of multiple convictions becomes an aggravating factor requiring disclosure.

Proportionality

The proportionality test under the Human Rights Act demands a balance to be struck between the interests of the individual (through rehabilitation) and the risk of appointing an unsuitable person to a sensitive position. The cases before the Court raised concerns the balance is too heavily weighted in favour of disclosure and blight an ex-offender’s prospects indefinitely.

The majority view of the Supreme Court is;

• the final decision about the relevance of a conviction should be the employer’s in the light of the circumstances of the role in question;
• the evidence that employers’ can’t be trusted with that decision is “distinctly thin”;
• the scheme is very closely aligned with the law;
• it’s impracticable to require a system in which every case is individually assessed.

 

However, the Court doesn’t like the multiple convictions rule and describes it as having eccentric consequences:

“Its rationale is that the criminal record of a serial offender is more likely to be relevant to his suitability for a sensitive occupation, because the multiplicity of convictions may indicate a criminal propensity. In itself, that is an entirely legitimate objective of a legislative provision of this kind.

The rule as framed is, however, a particularly perverse way of trying to achieve it. It applies irrespective of the nature of the offences, of their similarity, of the number of occasions involved or of the intervals of time separating them. As framed, therefore, the rule is incapable of indicating a propensity.

It may coincidently do so in some cases, but probably does not in a great many more…A rule whose impact on individuals is as capricious as this cannot be regarded as a necessary or proportionate way of disclosing to potential employers criminal records indicating a propensity to offend.”

 

The Court is also unhappy with the way in which disclosure affects young offenders:

“A caution administered to an adult requires consent. However, a warning or reprimand given to a young offender whose moral bearings are still in the course of formation, requires no consent and does not involve the determination of a criminal charge. Its purpose is wholly instructive, and its use as an alternative to prosecution is designed to avoid any deleterious effect on his subsequent life. Its disclosure to a potential employer would be directly inconsistent with that purpose.”

 

What Happens Now?

With so much uncertainty for people with a criminal history and for employers there’s a clear need for legislative intervention. Until this happens, some people will continue to suffer injustice at the hands of a system which otherwise regards their convictions as spent.

The government has said it’s considering the judgement carefully and the Chief Executive of the DBS has pledged to work with the Home Office and the Ministry of Justice to adhere to the judgement. In the meantime, HR professionals are in the front line.

They should lead employers’ in more nuanced approaches to old offences – perhaps reverting to common sense. While in most cases individuals won’t have stand alone human rights claims, the potential for reputational damage may be significant; no business really wants to be known for riding roughshod over candidates and employees human rights.

Individuals can do their own standard or basic checks with a view to challenging information with the DBS if it’s thought to be incorrect. In the case of enhanced checks, there is the option of a referral to the Independent Monitor if the DBS feels unable to assist.

I close with this thought from the penultimate paragraph of the minority judgement which should be on the desk of anyone considering an apparently adverse disclosure report:

“These cases should not be consigned to the category of unfortunate casualties at the margins. They represent the significant impact that the current policy choice has on a potentially substantial number of individuals. It is entirely possible to draw the boundaries for disclosable information at a level that would exclude persons such as the respondents in this case.”

 

Have you found your human rights violated by the release of extremely sensitive information to an employer, or perhaps you are an employer yourself and are looking for further legal guidance on the issue. We have a team of highly experienced employment lawyers based across our offices in Poole, Bournemouth, Winchester, Salisbury and Southampton. Don’t hesitate to contact senior employment solicitor James Humphery for further guidance on 01722 426915.