Appeal judges rules against criminal records disclosure scheme

The Court of Appeal has upheld a ruling that the criminal records disclosure scheme was disproportionate and unlawful offering people who have made minor mistakes in their past an opportunity to move on.

The original judgment related to the rule that anyone who has more than one conviction on their criminal record – regardless of the minor nature of the offence, how long ago it was committed and the offender’s circumstances at that time – must disclose them forever when applying for certain types of work that involve standard or enhanced checks under the Disclosure and Barring service, particularly work with children or vulnerable adults.

Whilst the government amended its original disclosure process after a Court of Appeal ruling in 2013 to include a ‘filtering scheme’ – which allows non-disclosure for single convictions for non-violent, non-sexual offences that did not lead to a custodial or suspended sentence after 11 years (or five and a half if the offender was under 18 years old at the time) – more than one conviction, even if it is of a similar minor, historic nature, demands permanent disclosure.

The scheme was declared unlawful by the High Court, as it was deemed to be incompatible with the right to privacy and family life under Article 8 of the Human Rights Act.

The judgment handed down yesterday involves a number of cases that were heard in the Court of Appeal in February this year, including those brought by the organisation Liberty, who represented the claimant known as ‘P’ (as previously reported by The Justice Gap) and the law firm Hodge, Jones & Allen supported by the legal charity Just for Kids Law.

The court ruled that the disclosure scheme has insufficient safeguards to be lawful, and that the restraints imposed on former offenders by the scheme were disproportionate to the benefits it could possibly have for the public.

In one of the cases involved, a man was convicted in the 1980s of ABH when he was 16-years-old and received a conditional discharge. The President of the Queen’s Bench Division, Sir Brian Leveson, said in his judgment: ‘It is difficult to see how publication of this detail, 31 years on, is relevant to the risk of the public, or proportionate and necessary in a democratic society.’

Christopher Stacey, co-director of Unlock who attended the hearing in the Court of Appeal, reckoned the ruling, could ‘affect many thousands of people with old or minor criminal records’.

‘Thousands of people contact us every year because they are being unnecessarily anchored to their past as a result of a criminal record disclosure system and DBS filtering process which is blunt, restrictive and disproportionate,’ Stacey said.

Over 240,000 DBS checks every year disclose convictions or cautions. ‘Since the filtering scheme was introduced in 2013, it’s helped some people with old and minor records to be free of the stigma and discrimination that so many face when they have something they have to disclose to an employer,’ Stacey said. However, he argued that the current system doesn’t go far enough. The ‘inflexible rules’ mean someone with more than one conviction would have to disclose all of their convictions indefinitely ‘regardless of the nature or circumstances of the conviction or the length of time that has since passed’. ‘The system acts as an additional sentence that often runs for life. It desperately needs reform,’ he said.

‘This important ruling gives hope to huge numbers of people whose ambitions have been dashed because of minor mistakes they made in the past,’ commented Debaleena Dasgupta, legal officer at Liberty, and solicitor for ‘P’. ‘The Government must urgently fix this broken system that needlessly prevents people from rebuilding their lives and contributing to society. We look forward to seeing a fairer scheme which has the capacity to consider individual circumstances where appropriate.’