I have written previously about the case of someone who had difficulties in getting a part time job at a local football club and also starting a sports studies course because of a warning he received for stealing two bikes when he was 11 years old. This was because when applying for these things he was required to obtain and disclose a copy of his Enhanced Criminal Record Certificate (ECRCs) which contained that self-same warning.

Yesterday his case, along with a case of a woman unable to get a job in the care sector because of a caution for shoplifting a packet of false nails from Superdrug some 10 years ago, came before the Court of Appeal in R (T) v Greater Manchester Police [2013] EWCA Civ 25 – see HERE.

The court said that a blanket requirement for some job seekers to supply details of all convictions – even minor offences that were spent (as in this case they were under the Rehabilitation of Offenders Act 1974) and which went back decades – was unlawful and amounted to a breach of the right to a private and family life.

Lord Justice Dyson who gave the judgement said that the court did not accept the Home Office’s argument that it was not within their discretion to make a declaration that the current law was incompatible with human rights because parliament was considering the matter.  The court said it could not be ‘confident’ that parliament would move ‘swiftly to find a solution’. Whilst disclosure of old convictions and cautions had, the court accepted, the express aim of protecting children and vulnerable adults, the current statutory regime which required disclosure in all cases – regardless of the relevance to the position applied for or how long ago it was – meant that disclosure in these cases was disproportionate to that legitimate aim and interfered with a person’s privacy rights.  The court added that it effectively excluded some people from employment.

The Court of Appeal concluded that the Rehabilitation of Offenders Act 1974 (Exceptions) Order (‘the ROA Order’) – which essentially provided that the 1974 Act (and there being no need to disclose spent convictions) did not apply in certain circumstances – was unlawful and of no effect. This has two consequences:

• The Rehabilitation of Offenders Act 1974 (‘1974 Act’) now applies in all cases without modification; and
• There has been no lawful basis for seeking Criminal Record Bureau (CRB) checks.

The fact that the 1974 Act applies without modification is of some legal and practical significance. To use the example of cautions, the requirements and limitation relating to what questions can be asked of someone, what needs to be disclosed, and the consequences for not disclosing, are now as set out in paragraph 3 of schedule 2 to the 1974 Act (similar provisions also apply to spent convictions under section 4 of the 1974 Act).

Under these provisions:

• No employer should ask about a spent conviction or caution;
• No employer should discipline a person for failing to disclose a spent conviction or caution;
• Nobody should be refused a job on the basis of a spent conviction or caution; and
• Nobody should be prosecuted for failing to reveal a spent conviction or caution.

The fact that the ROA Order is unlawful also has implications for the CRB check.

A CRB check is only lawful where it is sought for the purposes of an exempted question, defined as something to which the ROA Order applies. As the ROA Order has now been declared unlawful there are conversely no lawful exempted questions. There would therefore appear to be no lawful basis for conducting CRB checks.

The publication of the judgement was delayed from December last year in order for the Home Office to look the implications of the judgement and to avoid plunging the criminal records checks into chaos. However nothing appears to have been done.

The government appears to believe that if they simply ignore judgements for long enough, like a small and truculent child (see prisoner voting), they will simply go away. Lord Justice Dyson said that this was unacceptable describing the government’s slothfulness as ‘extraordinary’ and that it needed ‘to pull its finger out and introduce legislation’.

The order in T has now been stayed to allow an appeal though that does not mean that the judgment is of no legal effect. Theresa May now has 28 days to take the case to the Supreme Court and the Home Office has indicated it will do so, as in their words ‘the protection of children and vulnerable groups must not be compromised’. How this is achieved by preventing someone from working in the care sector because they stole some false nails 10 years ago is anyone’s guess. Perhaps instead they should actually get on with doing what I foolishly assumed was the purpose of the legislature, namely in this case introducing a more nuanced system for disclosure which strikes the proper and proportionate balance between public protection on the one hand with making sure youthful and minor indiscretions do not continue to blight people’s lives into adulthood.