Home News “Disproportionate” criminal records disclosure scheme “declared unlawful” after challenge by Liberty

“Disproportionate” criminal records disclosure scheme “declared unlawful” after challenge by Liberty

by Brian Sims
The High Court in central London

The High Court in central London

The High Court has declared the Government’s criminal records disclosure scheme “incompatible” with Article 8 of the Human Rights Act following a stern challenge by campaigning group Liberty.

The judgement relates to the rule that anyone who has more than one conviction – regardless of the minor nature of the offences, how long ago they were committed and the person’s circumstances at the time – is required to disclose them forever when applying for certain types of work.

Lord Justice McCombe and Mrs Justice Carr declared this rule “unlawful” under Article 8 of the Human Rights Act, which denotes the right to a private and family life. No challenge was brought to the rules that require those with convictions for violent or sexual offences or convictions for which they were given prison sentences to declare them.

Liberty’s client – referred to in this case as P – committed two extremely minor offences in 1999 while suffering from a then undiagnosed mental illness. P has committed no crimes since and – more than 16 years later – is seeking voluntary positions in schools with a view to achieving her aim of working as a teaching assistant.

However, under current rules, P is forced to divulge her two convictions when applying and – in explaining the circumstances of the offences – to reveal details of her medical history.

Liberty argued that this breached P’s rights under Article 8 of the Human Rights Act, that the system is arbitrary and disproportionate and requires “urgent reform” to allow for greater consideration of individual circumstances.

Liberty believes a more flexible system – which considers individual circumstances in cases of old and minor convictions – should be introduced. This could make clear that people would still have to declare any violent or sexual offences, but would allow those with more than one conviction for less serious offences to move on.

The defendants in this case argued that such a review scheme would be unworkable, but Lord Justice McCombe said he was “far from convinced” by this argument. The High Court has yet to decide on remedies.

Ruling brings reassurances

James Welch, legal director at Liberty, said: “This ruling will bring reassurances for the many people who’ve had their ambitions dashed because of very small mistakes they made years or even decades in the past. The Government must urgently fix this broken system, which rightly allows people with a single minor offence to move on with their lives, while those with two offences to their name, no matter the nature or circumstances of their crimes, are not in a position to do so.”

James Welch of Liberty

James Welch of Liberty

Welch concluded: “We’re delighted that the High Court has recognised the importance of the human right to privacy in allowing people to rebuild their lives.”

In August 1999, P was charged with shoplifting a book priced at 99 pence. She was bailed to appear before a Magistrates’ Court 18 days later, but failed to attend (and was therefore convicted of a second offence under the Bail Act 1976).

In November 1999, P was afforded a conditional discharge in respect of both offences.

P’s two convictions relate to a very specific and short period of her life, and she has no subsequent criminal history of any kind. At the time, she had untreated schizophrenia (a condition which was later diagnosed and then treated).

P now wishes to work as a teaching assistant and has sought voluntary positions in schools. However, with each job application she’s required to disclose her two convictions, which has the effect of leading to the disclosure of her medical history to date.

Stigma and discrimination

Christopher Stacey, co-director of Unlock – a charity for people with criminal records – said: “We’re absolutely delighted with the High Court’s decision in this important case which stands to affect many thousands of people with convictions. Since the filtering scheme (more of which anon) was first introduced back in 2013, it has helped many individuals with old and minor criminal records to be free of the stigma and discrimination that so many face when they’ve something on their criminal record.”

Stacey added: “However, the current system doesn’t go far enough. It’s blunt, restrictive and disproportionate. These shortcomings have now been recognised by the High Court and we’re excited about the improvements which will follow. They will not only benefit those with convictions to move on positively with their lives, but also contribute towards building what will be a fairer and more inclusive society.”

P’s case was heard alongside that of another claimant, A, who was convicted of two minor crimes in 1981 and 1982, and was concerned that he would be forced to disclose his convictions as part of his current employment.

The Police Act 1997 created the Disclosure and Barring Service (DBS), formerly the Criminal Records Bureau, which provides details of a job applicant’s previous convictions to prospective employers. For certain types of work, particularly those roles involving children or vulnerable adults, the standard or enhanced certificates issued by the DBS used to list all of the job applicant’s previous convictions.

However, in 2013, the Government amended this scheme following a Court of Appeal ruling (T versus Chief Constable of Greater Manchester) to introduce a ‘filtering’ process. Single convictions for non-violent, non-sexual offences that didn’t lead to a custodial sentence (including a suspended one) will be ‘filtered’ (ie not disclosed) after eleven years (or five-and-a-half years if the person concerned was under 18 years of age at the time of the offence).

The new filtering process doesn’t apply if a given individual has more than one conviction, regardless of the minor nature of the offences or the person’s prevailing circumstances at the time.

The Rehabilitation of Offenders Act 1974 – itself designed to govern the circumstances in which an individual has to admit to a previous conviction if asked – operates in a similar fashion. An individual applying to work with children or vulnerable adults doesn’t have to disclose a conviction which is ‘filtered’.

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