The Rights and Wrongs of Disclosing Criminal Records – Supreme Court Ruling

There is a clear public interest in those who work with children or vulnerable adults being required to submit to criminal record checks – but how old, or minor, do their convictions have to be in order to be exempt from disclosure? The Supreme Court addressed that burning issue in a guideline case.

The case concerned four individuals who had all been convicted or received cautions or reprimands in respect of offences ranging from carrying children in a car without a seatbelt and theft of a sandwich to assault occasioning actual bodily harm and sexual assaults arising out of childhood experimentation. The offences were of some antiquity, all but one of them dating back to the 1980s or 1990s, and some of them had been committed when the offender was very young.

By virtue of legislation designed to promote the rehabilitation of offenders, all of the convictions and cautions were spent and there was no general obligation to disclose them to potential employers. However, as the four either worked with, or wished to work with, children or vulnerable adults, employers were required to obtain extended criminal record certificates, on which their past misdemeanours would be disclosed.

The four argued before lower courts, all but one of them successfully, that the statutory disclosure schemes were incompatible with their right to respect for their privacy, enshrined in Article 8 of the European Convention on Human Rights. That was because of the breadth of the categories of offence that were required to be disclosed. The schemes were also ruled disproportionate in failing to distinguish between convictions and cautions of varying degrees of relevance.

The Supreme Court conducted a comprehensive review of the relevant law after the Home Office, and the one complainant whose case failed in the lower courts, appealed. The Court noted that the schemes derived from the Rehabilitation of Offenders Act 1974 and the Police Act 1997, both of which created highly prescriptive and mandatory disclosure regimes. On that basis, the schemes passed the legality test and were in accordance with the law for the purposes of Article 8.

Turning to the issue of proportionality, the Court found that the schemes were not indiscriminate in nature but were carefully devised to achieve a balance between the competing public interests of rehabilitating offenders and safeguarding children and vulnerable adults. It was unfeasible to require a system of individual assessments and bright line rules were required to render the schemes practicable.

The approach of the schemes in requiring disclosure by reference to pre-defined categories of offending was justified. There was little evidence that employers could not be trusted to take an objective view and final decisions as to the relevance or otherwise of prospective employees’ convictions was properly left to them.

The Court, however, found that the schemes lacked proportionality in two respects: a rule concerning those with multiple convictions did not achieve the purpose of indicating a propensity to offend and applied irrespective of the nature, similarity, number or time intervals of offences. The schemes also failed to take sufficient account of the fact that warnings and reprimands issued to younger offenders are instructive and specifically designed to avoid damaging effects later in life through disclosure. The Court disposed of the appeals, and made limited declarations of incompatibility, in accordance with its ruling on the principles raised by the case.