Out-Law News 2 min. read

UK Supreme Court: forcing disclosure of minor or spent convictions not "necessary or proportionate"

Requiring applicants for those jobs which require enhanced criminal record checks to disclose all spent convictions no matter how historic or minor is an unnecessary and disproportionate interference with their human rights, the UK's Supreme Court has ruled.

In a recent judgment, the UK's highest court upheld last year's decision by the Court of Appeal that requiring "blanket" disclosure of all such offences as part of an Enhanced Criminal Record Certificate (ECRC) breached two individuals' rights to a private life under the European Convention on Human Rights (ECHR). ECRCs can be requested by certain professional bodies and employers and disclose every 'relevant matter' on the Police National Computer, including historic and minor convictions and cautions.

"[The ECRC regime] failed the requirement of necessity," said Lord Wilson in his leading judgment. "The disclosure of [the cautions] went further than was necessary to accomplish the statutory objective and failed to strike a fair balance between their rights and the interests of the community; and so it violated their rights under article 8 [of the ECHR]."

Lord Reed added that the legislation governing the ECRC regime, including the 1975 Rehabilitation of Offenders Act (Exceptions) Order and the 1997 Police Act "[failed] to meet the requirements for disclosure to constitute an interference 'in accordance with the law'".

"That is so ... because of the cumulative effect of the failure to draw any distinction on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought, and the absence of any mechanism for independent review of a decision to disclose data," he said.

"The disclosure of the respondents' cautions could not in any event be regarded as necessary in democratic society. In the case of the respondent T, the disclosure of warnings for dishonesty which had been given to him when he was a young child bore no rational relationship to the aim of protecting the safety of children with whom, as an adult, he might come into contact. In the case of the respondent JB, the impact upon her private life of the disclosure of her caution for minor dishonesty, many years earlier, was disproportionate to its likely benefit in achieving the objective of protecting people receiving care," he said.

The government had argued that the aims behind the regime justified the intrusion into individuals' private lives; both because they provided "important protection for employers and for the children and vulnerable adults in their care" and because job applicants were not automatically barred from employment as a result of the disclosures. After the Court of Appeal ruled against the government last year, it introduced a number of changes to the Rehabilitation of Offenders Act which shortened the 'rehabilitation periods' for the majority of criminal convictions in England and Wales. Offences are now considered to be 'spent' sooner and no longer need to be disclosed for most purposes.

The Supreme Court heard two cases: that of a man known only as 'T', who was cautioned in 2002 at the age of 11 in respect of the theft of two bicycles; and of a woman, 'JB', who had been cautioned for the theft of a packet of false fingernails as an adult in 2001. T told the court that his place on a sports studies course involving contact with children had been "at risk" as a result of the warnings appearing on his ECRC; while JB said that she had been unable to obtain a job in the care sector as a result of her caution.

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