Criminal records – when disclosure becomes an invasion of privacy…
The High Court has held that the current UK criminal records disclosure scheme is incompatible with Article 8 of the European Convention of Human Rights “ECHR” – the right to respect for private and family life. The problem relates to the fact that for certain employment types all prior convictions must be disclosed, regardless of relevance, triviality or how old they are.
To give a quick recap of the disclosure scheme…
If a job is covered by the Exceptions Order (for example working with children), the employer may ask the individual to disclose any past convictions and is entitled to ask for a standard or enhanced disclosure and barring service “DBS” check. In 2013 this was amended so if an applicant had only one conviction in total, relating to a non-violent/non-sexual crime which did not lead to a custodial or suspended sentence, then after 11 years (or 5½ years if the offence was committed when the individual was under 18) it would not be disclosed.
The issue highlighted by this case is that there is no such filter if there is more than one conviction, regardless of the type of convictions or the time which has elapsed. This case, R (on the application of P) v Secretary of State for Justice (2016) was brought by Claimants who both had two minor convictions in the 1980s/1990s.
Both Claimants argued that the prior convictions had no relevance to their current employment status. In legal terms, it was held that the disclosure scheme in the UK fails the necessity and legality test under article 8(2) ECHR.
The case highlighted that the DBS scheme can have a disproportionate interference with an applicant’s private life. Further, someone with one conviction for something more serious may fall below the bar whereas those with two convictions for minor offences may not.
Until the government addresses this judgment, employers that require standard or enhanced DBS checks should ensure that they exercise judgment when considering the weight to attach to old or trivial convictions.