Court of Appeal rules that full disclosure CRB Checks breach Human Rights

Judges at the Court of Appeal handed down a judgment earlier this week which stated that the law compelling employees to disclose all previous criminal convictions to employers infringes Article 8 of the Convention for Human Rights – the right to a private life.  The judgment had been due to be handed down in December but was postponed because of the Government’s concerns about its implications on the Disclosure and Barring Service (“DBS”).

The judges concluded that in the two of the three cases they heard, two of the job applicants had been wrongly required to disclose their past offences; ostensibly they were not relevant to the posts for which the two people had applied.

One case concerned a 21-year-old man, referred to as “T” throughout the proceedings, who applied for a part-time job at his local football club when he was 17 and later to undertake a university sports studies course.  T had been given cautions by Greater Manchester police when he was 11 years old over two stolen bicycles.  Although the cautions had been spent under the Rehabilitation of Offenders Act 1974 T was still asked to disclose the cautions.

The other case concerned a woman who had received a shoplifting caution 10 years go for walking out of Superdrug without paying for a packet of false nails.  The woman contended that it was a genuine mistake but nevertheless it was preventing her from obtaining work to care for vulnerable adults.

Lord Dyson, Master of the Rolls, ruled that such blanket provisions requiring the disclosure of all criminal offences amounted to a breach of Human Rights.  Whilst recognising that the purpose of CRB checks is to protect children and vulnerable adults Lord Dyson commented that the “statutory regime requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate to that legitimate aim.”

It remains to be seen what impact this decision will have on the DBS which has only recently taken over the functions of the Criminal Records Bureau (“CRB”) and the Independent Safeguarding Authority (“ISA”) for England, Wales and Northern Ireland.  Nonetheless, the Court has made a clear declaration that further change is required and that responsibility rests squarely on the shoulders of Parliament.

The Home Secretary, Theresa May, now has 28 days within which to appeal the decision and take the case to the Supreme Court before the ruling of the Court of Appeal takes effect.  The noises coming out of the Home Office are that the decision will be appealed – watch this space!

Until then the judgment shows that good intentions is not a sufficient defence where individual rights are breached. The Court acknowledged the objective of protecting the young and vulnerable but said that the rules as they stand went too far.  This is a Human Rights case but the same principle holds true in data protection and other fields. It is always worth checking out the possble ramifications before doing what feels like the right thing.

If we can help with evaluating what you plan to do with applicant, employee or other information please contact the Employment or Business teams.

Daniel Milnes

About Daniel Milnes

Dan is a Partner and Head of Contracts & Projects. Dan’s blogs cover the areas in which his specialities lie in commercial, regulatory and governance law which cover a broad range of matters dealing with contracts, projects, corporate and group structures, funding and compliance with a range of legal regimes including data protection. This also involves writing and advising on various forms of commercial contracts including joint ventures, development and construction agreements and intellectual property contracts including IT agreements, sponsorships and other rights licensing arrangements.
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