A major victory for the non-disclosure of old convictions as government appeal fails 

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A major victory for the non-disclosure of old convictions as government appeal fails 

Old Bailey: the Central Criminal Court of England and Wales

An appeal heard in the Supreme Court yesterday will put a stop to what the court referred to as the  ‘capricious’ system of criminal record disclosure under which, in the last five years , over one million youth criminal records were disclosed  relating to offences from more than 30 years’ ago. 

Rejecting the government’s appeal, the Supreme Court ruled in favour of three individuals who had been systematically excluded from job opportunities because of the disclosure of old misdemeanours, cautions and offences that were irrelevant to the jobs they were seeking. Ruling that the current way in which criminal records are disclosed to employers breaches Article 8 of the ECHR (the right to a private life), the Supreme Court ruling backed the High Court’s 2016 finding that the scheme was ‘not in accordance with the law’.

‘Today is a crucial step towards achieving a fair and proportionate filtering system that takes a more calibrated and targeted approach towards disclosing criminal records,’  commented Christopher Stacey, co-director of Unlock, which intervened in the case.

The government will now have to consider reform of the current system of checking criminal records, the Disclosure and Barring Service (DBS). One of the cases concerned a woman, P, who received a caution in 1999 for the theft of a sandwich from a shop and a conviction in the same year for the theft of a 99p book and subsequent failure to surrender to bail. P, who was homeless and suffering from undiagnosed schizophrenia at the time, received a conditional discharge for both offences.

P has not incurred a caution or conviction since. Despite being qualified to work as a teaching assistant, the court heard that P has been unable to find such employment owing, she alleges, to the routine appearance of two spent convictions on her criminal records dating back almost 20 years. 

In a complex ruling, the court identified that there were two conflicting interests at play in this decision: the rehabilitation of ex-offenders and the protection of the public against people who may pose risks in occupations dealing with vulnerable individuals. In his judgment, Lord Sumption referred to such interests as not only competing but ‘incommensurate’. Recognising that there would be no way to draw the line between such interests in a way that would be satisfactory to everybody, he nonetheless ruled that the government’s present position was unacceptable. 

The DBS currently requires past offences to be revealed in a number of circumstances, including where the caution is current and not spent under the 1974 Rehabilitation of Offenders Act. It also currently includes where the conviction resulted in a custodial sentence, where a conviction or caution is serious, and where someone has more than one conviction. 

The court found that this system was disproportionate in two overriding respects. The first was that it is an error of principle to include a caution given to a young offender on any CRB check, given that the purpose of such cautions are ‘wholly instructive’, designed to avoid any deleterious effect on his subsequent life. The Supreme Court justices ruled that disclosure of such a caution to a potential employer would have an effect directly inconsistent with this purpose.

This conclusion came in resect of the case of G, who was given a police reprimand at the age of 13 for sexually assaulting two young boys. The police report at the time described the incident as a matter of ‘dares’ involving experimental touching and curiosity on the part of all three boys. In 2011, G lost his job as a library assistant after an enhanced criminal records check disclosed the reprimand. 

The second point the court made was that the current DRB system was arbitrary. By mandating a wholesale disclosure of individuals’ convictions only by virtue of there being more than one, the rule ‘applies irrespective of the nature of the offences, of their similarity, of the number of occasions involved or of the intervals of time separating them’, Lord Sumption explained. 

Enver Solomon, the chief executive of Just for Kids Law, which represented one of the original claimants, commented: ‘Our client should never have been given a criminal record that stays with him for life. The judgement makes clear that the disclosure of reprimands and cautions, the legal equivalent of a slap on the wrist, is disproportionate and damaging to the future rehabilitation of children preventing them from moving on from their past.’