The established regime whereby applicants for jobs requiring contact with children or vulnerable adults have their entire criminal records disclosed to prospective employers has been declared incompatible with human rights. The Court of Appeal ruled that the blanket disclosure of all past offences, regardless of their antiquity or triviality, was a disproportionate interference with the right to privacy.
The case involved a would-be sports teacher (T) who feared that disclosure of a warning he was given for stealing bicycles when he was aged 11 would blight his future career. Similar concerns were raised by lawyers representing a woman (JB) who had trained as a carer but who had been unable to find employment due to disclosure of a 10-year-old caution she was given for stealing a pack of false nails.
The court ruled that certain provisions of the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 were incompatible with article eight of the European Convention on Human Rights and observed that it was a matter for Parliament to decide what amendments to the law needed to be made in the light of the court’s decision.
The Master of the Rolls, Lord Dyson, said that the objections to the current regime were well illustrated by the case of T and it was difficult to see what relevance a warning a man of otherwise good character had received as a young boy could have to his suitability to enrol on a sports course. JB had completed years of fruitless training only to have her hopes of a career working with vulnerable adults stymied by disclosure of the caution.
Observing that the ‘blanket disclosure’ of even very minor offences, without any limit of time, was ‘inimical’ to the public interest in the rehabilitation of offenders, the judge said: ‘The disclosure regime was introduced in order to protect children and vulnerable adults. That objective is not furthered by the indiscriminate disclosure of all convictions and cautions to a potential employer, regardless of the circumstances.’
Recognising the impact that the decision would have on procedures currently followed by police forces around the country, the court agreed that the declaration of incompatibility would not come into effect for 28 days in order to allow time for Home Office lawyers to seek permission to appeal to the Supreme Court.