In the recent case of T v Chief Constable of Greater Manchester and ors, the Court of Appeal considered whether the current criminal records checking system breaches article 8 of the ECHR.
The Rehabilitation of Offenders Act 1974 (ROA) provides that certain convictions, cautions and warnings become "spent" after a specified period.
Individuals with spent convictions do not have to disclose them to prospective employers and failure to do so can not be relied upon by an employer to dismiss or refuse to employ individuals.
However, prison sentences of 30 months are never spent and in relation to certain occupations, including working with children or vulnerable adults, the ROA protections do not apply.
The Police Act 1997 provides the legislative framework for the disclosure of criminal record information through the issue of criminal record certificates. To some extent this is in conflict with the ROA regime; a standard criminal record certificate sets out details of every "relevant matter" contained in central records and this includes convictions, cautions, warnings and reprimands and, in certain circumstances, those which would otherwise be treated as "spent":
Article 8 of the European Convention on Human Rights (ECHR) provides a qualified right to private and family life. Such right can be interfered with by a public authority where it is,
". necessary, in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
In T v Chief Constable of Greater Manchester and ors, T had received two warnings from Manchester Police at the age of 11 in connection with two stolen bicycles. In September 2010, T enrolled on a university course which involved teaching and contact with children. A check revealed the warnings. T brought judicial review proceedings.
The Home office accepted that the Article 8 right to privacy had been interfered with in this case but it argued that this was justified because it was intended to protect employers and children and vulnerable adults in their care.
The Court of Appeal held that while the checking scheme pursues legitimate aims of protecting employers and vulnerable persons, and also enabling employers to make an assessment as to whether an individual is suitable for a particular kind of work, requiring the disclosure of all recorded convictions and cautions is disproportionate to that aim.
In T's case this was particularly pronounced because it was difficult to see what relevance the particular warnings, incurred when he himself was a child, had to his suitability to work with children years later.
In the Court of Appeal's view the indiscriminate disclosure of all convictions etc. to a potential employer, regardless of the circumstances was unfair and should be subject to a filtering system, which considers the relevance of information about a person's criminal record to the job for which they are applying.
The Court said that amending the current system was a job for Parliament but it was not hopeful that it would "move swiftly" to do so.
This decision effectively makes the current criminal records regime unworkable. However, the Home Office has said that it will seek permission to appeal the decision to the Supreme Court and the Court of Appeal has ruled that its decision will not take effect until determination of that application. Employers will therefore need to wait for the outcome of this before the position will be clarified. Practically all employers can do in the meantime is continue to operate within the current regime.
Even if the system is changed in the future to introduce some sort of filtering mechanism this in itself is likely to be problematic as it could lead to errors being made and relevant convictions not being disclosed, undermining the very purpose of the criminal records checking procedure.