Yesterday it was ruled that a blanket requirement on job applicants to disclose minor offences, including cautions, amounted to a breach of their right to a private and family life under Art 8 of the European Convention of Human Rights, writes Mhairi Aylott. The Appeal court objected to the use of Criminal Records Bureau (CRB) checks because disclosure had to be made regardless of its relevance to the position applied for. The judge accepted the disclosure of old convictions and cautions pursues the aim of protecting children and vulnerable adults, however the ‘the statutory regime requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate to that legitimate aim.’

• Mhairi Aylott is a researcher at the Young Foundation and works as part of the Applied Innovation team, supporting a range of government bodies, charities and organisations to innovate for positive social change. Mhairi led research on the Justice strand of work at the Young Foundation, with expertise in Social Impact Bond and Payment by Result modelling.
• Read UNLOCK’s Christopher Stacey on the ruling HERE and Prisoners Advice Service Matt Evans HERE.

Although the judgement was issued in December 2012, it has just come into the public domain. Lord Dyson, the Master of Rolls, delayed publication to give the Home Office time to prevent the potential legal implications ‘plunging the criminal record checks system into chaos.’ But Theresa May has done nothing. Lord Dyson commented: ‘It is extraordinary that nothing has been done. The government needs to pull its finger out and introduce legislation.’

What is the need for reform?
The reality of the situation and the need for change is stark. Around 30% of men under 30 have some sort of criminal conviction, and some 9.2 million people in the UK have a criminal record. Unemployment has clear links to reoffending – three-quarters of prisoners leave prison without a job yet we know that having a job reduces the likelihood of re-offending by as much as 50%. We have done extensive work around this at the Young Foundation, proposing an employment deployer for ex offenders – those who receive coaching, supported job searching and intensive exit training are far more likely to progress into sustainable employment and a crime-free future life. The Coalition must remember that rehabilitation can work.

On top of this, the burdensome CRB system affects those who committed low-level offences, who have not served a sentence. Cautions showed up on 153,000 Criminal Records Bureau checks carried out last year and many young people who accept cautions are not unaware that they will have a criminal record, The Daily Mail comments, ‘young people caught shoplifting or taking part in drunken pranks are agreeing to sign the statements in the mistaken belief they will be wiped from databases after a few years, not realising that they remain on file until they turn 100.’ A quick look online will reveal stories of people banned from employment due to cautions, for example have a read about Tom Utely.

Apart from inhibiting employment, Big Brother Watch disclosed that almost 12,000 people have been wrongly branded criminals over the past five years due to inaccurate record checks, leading to £1.9million being paid in compensation. Checks are also expensive to administer. Julie Spence, ex Chief Constable for Cambridgeshire, questions that ‘whether, in an age of austerity, we can afford a criminal records agency in its current form.’ She argues that the ‘bureaucracy and the over-managing of risk’ introduced by CRB checks stifles opportunities to protect vulnerable adults, where money is spent on staff time to administer the checks, rather than front line staff.

Welcoming the response
Many have championed the ruling. Unlock, the charity for people with convictions, welcomed Lord Dyson’s remarks, ‘Under the current system, even the most minor childhood convictions are kept on record until a person’s 100th birthday.  There will be no ‘rehabilitation revolution’ until people have a real opportunity to leave crime behind.’  Corinna Ferguson, legal officer for Liberty, said: ‘for too long irrelevant and unreliable information provided under the blanket CRB system has blighted people’s lives. We hope that long overdue reforms – properly balancing the aim of public protection with privacy rights – will now be forthcoming.’

Josie Appleton, of the Manifesto Club who campaign against excessive state regulation, added: ‘The CRB system isn’t fit for purpose —thousands of people are barred from the job market because of minor offences, or accusations that they can’t shift from their record.’ Keith Vaz, the chairman of the Commons home affairs select committee, also understood the need for a new approach: ‘It is clear that we need a new approach to dealing with the disclosure of minor juvenile convictions.’

What if the law is changed?
The Government did not welcome the decision: ‘The protection of children and vulnerable groups must not be compromised. We are disappointed by this judgment and are seeking leave to appeal to the supreme court.’ They have 28 days to appeal to the Supreme Court. Alternatively they could make changes through Parliament to comply, to change the law to ‘filter’ out any old or minor convictions which did not lead to a term in prison.

Others have called for minor offences to be wiped from records after a reasonable time. Yet reports suggest that employers could be uneasy about such changes. Others argue that the law would no longer deter people committing minor crimes when they are young if changes are made.

Others maintain that we need CRBs in their current form to protect children and vulnerable adults. The media is filled with reports of employees who wrongfully make it through checks, for example, the Daily Mail reported earlier in the year about a convicted sex offender who employed at a hospital. CRBs were introduced for the very reason of protecting those vulnerable, following the Bichard Inquiry after the murder of Holly Wells and Jessica Chapman. CRBs clearly have a role to play in pre-employment checks; the BBC reported that checks had prevented more than 130,000 unsuitable people, including rapists and paedophiles, from working with children or vulnerable groups. It is important that people do not slip through the net who are not fit to work in certain vocations.

Looking forward
CRBs have a place in pre-employment checks, but must be used proportionally, and not bar people from entering the job market because of minor offences or accusations from years past. When ministers want to talk about ‘transforming justice’ they are more than happy to shorten sentences, promote rehabilitation and increase the use of payment by results in probation. However, in this case they seem to reject a change in procedure which could rightfully move people into employment – this ruling gives the government a chance to increase employment opportunities for those who unfairly have a blanket ban imposed on them. CRBs have a role to play in checking that the right people are employed in the right job, no one can argue that the state must protect young people and vulnerable adults. But the state must not unfairly prevent people from entering the job market through a disproportionate and burdensome background check, ruining the careers and life chances of those who have ‘committed trivial indiscretions.’