Disclosure of spent convictions breaches applicants’ human rights

Background

The Supreme Court (SC) has ruled that irrelevant police cautions and minor convictions (relevance being determined by the circumstances) should not be disclosed in criminal record checks. The requirement to do so, the SC found, would be incompatible with a job applicant’s right to privacy under Article 8 of the ECHR (the right to respect for private and family life). Certain professional bodies and employers (such as health and social care service providers working with children and vulnerable adults) are permitted to request Enhanced Criminal Record Certificates (ECRCs). ECRCs disclose all information on the Police National Computer, including spent convictions, no matter how historic or minor. Before the SC decision, the Court of Appeal had held that the disclosure of all convictions/cautions irrespective of relevance was a disproportionate interference with Article 8, when weighed against the legitimate aim of protecting employers and vulnerable people. This resulted in the introduction of amending legislative provisions designed to address the Court of Appeal decision and narrow the content of criminal record certificates. The Government also appealed to the SC. The SC ruling upheld the earlier Court of Appeal decision in relation to two individual cases. One of which involved a man (T) forced to disclose cautions he received aged 11 for the alleged theft of two bicycles. His criminal records were checked when he applied for a part-time job at a football club aged 17 and when applying for a university course, as both involved working with children.The other case related to a woman (JB) who was cautioned aged 41 in relation to the theft of a packet of false fingernails. She was barred from working in the care sector when the caution was disclosed during a criminal records check eight years later, on the basis that her criminal record made her an inappropriate person to work with vulnerable people. In T’s case it was found that the disclosure of warnings issued when he was a child had no “rational relationship” with the aim of protecting children he might have contact with as an adult. In JB’s case the disclosure of a caution for minor dishonesty was determined to have a disproportionate impact on her when compared to achieving the objective of protecting people she would have cared for. The SC made no comment on whether the narrowing amendments to the legislation introduced by the Government were compatible with the ECHR.

When will convictions be disclosed?

The result of the SC decision is that spent convictions and cautions will no longer have to be disclosed under a criminal record check if:

• The spent conviction did not lead to a prison sentence
• The spent conviction or caution does not related to a ‘listed offence’ (i.e.

violent or sexually motivated crimes)

• The individual has no other criminal convictions
• In relation to cautions, if two years have passed and the individual is under 18 or six years have passed if the individual is over 18
• In relation to convictions, if five and a half years have passed and the individual is under 18 or 11 years have passed if the individual is over 18.

Advice for employers

If you are concerned about any gaps in an applicant’s work history you should give the potential employee an opportunity to be open and honest those gaps of time rather than jumping to any conclusions about what this might mean. Remember, it is unlawful to dismiss or refuse to employ an individual on the grounds of spent convictions.