The Disclosure and Debarring Service

27 Jan 2016

Ms P is 47. She worked as a Teacher in Spain and Greece until 1997 when she became unwell. Her condition was neither identified nor treated until 2000 when she was diagnosed with schizophrenia. 

In July and August 1999 Ms P stole a sandwich then a book (priced at 99p). She was cautioned for the first offence so this is not disclosable on its own account. She was bailed to appear before the Oxford Magistrates on the second offence. She failed to answer her bail because of her health and because she was homeless. In consequence she was convicted of two offences; theft and not answering her bail.

Subsequently Ms P rebuilt her life and obtained voluntary work as a Teaching Assistant. She wanted to develop this into paid employment but was unsuccessful. Her failure was partly attributed to the convictions which of course led to her having to explain both her behaviour and her previous mental health problems.  As Lord Justice McCombe dryly observed:

“… common sense must dictate that they can hardly be to her advantage…”

Mr A is 51. When he was 17 he was convicted of stealing a coat from a market stall. Ten months later he was convicted of stealing a motorcycle and riding without insurance. Amongst his concerns are that he is now a Finance Director and might be required to disclose his convictions in due diligence processes or to the FSA.

In each of these cases the convictions for two or more offences is significant. Regulations under the Police Act 1997 require that where there are two or more convictions, those convictions are always disclosable.

Both claimants applied to the High Court for judicial review against the Minister for Justice, the Home Secretary and the Chief Constable of Thames Valley Police. The Claimants say the scheme operated by the DBS is an arbitrary infringement of their rights to respect for their private and family lives (Article 8 of the European Convention on Human Rights); their convictions are old and irrelevant to their employment today.

Lord Justice McCombe summarises the main underlying legal issues in the claims like this:

“…there is no process in cases like the present by which the subject can seek to prevent disclosure of convictions on the basis that disclosure in his case is disproportionate, a failing which goes to the legality of the statutory scheme…such a process could, theoretically, take either or both of two forms: (a) a consideration when each criminal record check is made and (b) a mechanism whereby, after a passage of time, a subject can apply for exemption from disclosure.

The defendants say Parliament (on advice from the Independent Advisor for Criminality Information Management) drew a line requiring disclosure on a permanent basis if a person has more than one conviction. It is entirely rational to give a first offender a second chance but no more. Furthermore, independent review of individual cases would be “burdensome and impractical”.

The number of Enhanced Criminal Record Certificates issued in 2014/15 was 3,833,149.

 Lord Justice McCombe isn't convinced a review scheme is unworkable; some cases could be considered ad hoc on a specific application for a disclosure certificate or after the lapse of a “suitable” time with a time bar to further applications. He also noted that other European countries operate systems which allow for discretion in disclosure (e.g. the Netherlands and Sweden) while others gradually expunge records according to time elapsed and the seriousness of the offence.

 Addressing the central legal issue the judgement goes on:

“… the question must now be whether the present statute affords the individual adequate protection against arbitrariness, but also, in order for an interference with Article 8 rights to be “in accordance with the law” there must be adequate safeguards which have the effect of enabling the proportionality of the interference to be adequately examined…”

…the present rules can give rise to some very startling consequences. Such results are, in my judgement, properly to be described as “arbitrary”…

No doubt in many cases results requiring indefinite disclosure of certain serious offences will be seen to be far from arbitrary, in that offences will clearly be relevant to anyone considering a person’s suitability for engagement in a sensitive post requiring an ECRC.  However, when the rules are capable of producing such questionable results on their margins, there ought (as it seems to me) to be some machinery for testing the proportionality of the interference if the scheme is to be “in accordance with the law” under the wider understanding of that concept that emerges from the T case, following MM…

…The deference that a Judge would always feel towards a scheme expressly sanctioned by Parliament cannot be engaged in this case. Equally, therefore, it seems to me, that questions of administrative convenience which trouble the defendants so much can have no operative place in assessing the lawfulness of the interference with Convention rights…

…I can see no reason for thinking that the convictions in issue in the present cases before us bear, for the Claimants’ entire lifetimes, a rational relationship with the objects sought to be achieved by the disclosure provisions of the act, simply because in each case there is more than one conviction…”

So the current disclosure and debarring scheme is unlawful. 

Clearly this is far from the last word on the subject and I assume there’ll be an early appeal. In the meantime, what should you do if you require applicants or employees to produce Criminal Record Certificates?  My advice is:

1) don’t panic;
2) review your policy on disclosure and if it still seems to you to be reasonable and proportionate in your context, carry on as before while being alert to further developments;
3) if you have concerns about your policy or the way in which it operates, take professional advice.