Criminal records disclosure

Nicola Bennison and Trish D’Souza report on a recent successful judicial review challenge against the criminal records disclosure scheme.

Education institutions regularly have to apply to the Disclosure and Barring Service for disclosure of any criminal records that an applicant for a position may have. Institutions should therefore be aware that the Administrative Court has held in the case of  R (on the applications of P and A) v Secretary of State for Justice and Secretary of State for the Home Department that specific aspects of the UK’s criminal records disclosure scheme are incompatible with the right to respect for private and family life.

Background  

In December 2015, the Court considered two challenges to the requirement for all prior criminal convictions to be disclosed for certain types of employment/activity where the applicant has more than one conviction. The applicants claimed that this requirement infringed Article 8 of the European Convention on Human Rights (“ECHR”) and they sought a declaration that the scheme under the Police Act 1997 (“PA”) and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (“the Order”) was incompatible with Article 8.

In its judgment of 22 January 2016, the Court allowed the applications to succeed.

Legal position

Article 8 provides that everyone has the right to respect for their private and family life and there can be no interference with this right except “as allowed by law” and “necessary” in the interests of: national security; public safety or the economic well-being of the country; the prevention of crime/disorder; the protection of health/morals; or to protect the rights and freedoms of others. 

The rights set out in Article 8 are not absolute, in recognition of the fact that there will sometimes be a legitimate need for interference. One area where this arises is in the context of disclosure of criminal convictions prior to the commencement of certain employment or other activities. 

The Rehabilitation of Offenders Act 1974 (“ROA”), which aims to support reformed offenders into employment, educational courses and other activities, provides that applicants are not required to disclose criminal convictions/cautions if they are “spent”. A conviction/caution generally becomes “spent” following a specified period of time. However, this rule is subject to exceptions and does not apply where the disclosure of spent convictions is required to enable an assessment of suitability for admission to certain professions, offices and employment types (including those that require an individual to work with children or vulnerable adults).

The PA created the Disclosure and Barring Service, which supplies details of an applicant’s previous convictions to prospective employers/providers. The disclosure scheme and the law in relation to the exceptions requiring disclosure of “spent” convictions, have developed over a number of years. Under the current scheme, where an applicant is applying for an excepted role and has two or more criminal convictions, all convictions are disclosable.  

The facts

Both applicants had two minor historic convictions and were concerned about the requirement to disclose those convictions. The first applicant (a teacher who had worked in Spain and Greece but had failed to secure a position as a teaching assistant in the UK) felt embarrassed by her previous convictions (which were committed whilst she was experiencing mental health problems) and claimed that her disclosable convictions prevented her from getting paid employment. The second applicant (a finance director and project manager) was concerned that his family might learn of his convictions and was also concerned about his career prospects.  

Consideration by the Court

The Court referred to a number of previous cases and was directed by both parties to consider the “legality” and “necessity” of the rules in question. The Court, having considered previous case law, noted that the question was whether the present scheme affords the individual adequate protection against arbitrariness, but also, in order for an interference with Article 8 rights to be “in accordance with the law” there must be adequate safeguards which have the effect of enabling the proportionality of the interference to be adequately examined.

The Court noted that the present scheme could be properly described as “arbitrary” in certain circumstances but there were also cases where offences had clear relevance to the question of suitability. However, the Court observed that there ought to be some machinery for testing the proportionality of the interference with Article 8 if the scheme is to be “in accordance with the law”. The Court concluded that the PA in its present form fails to meet the ECHR requirement “as to the quality of the law”, therefore a decision as to whether the interference was “necessary” did not strictly arise. However, the Court could see no reason for thinking that the applicants’ convictions had a rational relationship with what the Act was trying to achieve simply because they had more than one conviction.

Ultimately, the Court found that there was no rational connection between the interference with the applicants’ Article 8 rights and the aim of ensuring suitability for a particular profession or role for the remainder of their lives across the entire range of activities covered by the Order.

Comment

Whilst this judgment raises questions about the legality of the UK’s current criminal records disclosure scheme, it is important that educational institutions continue to comply with the current scheme and keep up to date with any developments in legislation and guidance. 

All education providers should be familiar with the circumstances in which they can legitimately request that an individual discloses “spent” convictions. Whilst this may be an easy decision to make for a job applicant who will be in contact with children or vulnerable adults, it is also important to consider student applications to vocational and professional courses that may be caught by the Order and require disclosure of “spent” convictions. This will not apply to all vocational and professional courses but will apply in particular to courses that would involve applicants working with children, providing care services to vulnerable adults, or providing health services.

This judgment reinforces the point that interference with Article 8 rights needs to be proportionate and necessary to achieve a legitimate aim. Even though  the statutory regime remains unchanged at this time, the reasonableness of an educational institution refusing a job applicant or student applicant with historic minor convictions is now likely to be given greater scrutiny and institutions will need to examine carefully the results of any criminal conviction check to determine whether any disclosed convictions are relevant to the role in question.  

Nicola Bennison is a partner and Trish D’Souza is a senior associate at Eversheds. Nicola can be reached on 0115 931 7602 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Trish can be contacted on 0292 047 7354 or This email address is being protected from spambots. You need JavaScript enabled to view it..