Supreme Court case on filtering out juvenile criminal records from adult DBS checks

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Commercial Article

04 March, 2019

Criminal record checks form an important stage of many recruitment processes for a multitude of positions and sectors, but it has long been accepted that not all criminal transgressions are pertinent to position being applied for. A potential employee's driving charge has little relevance if the position involves no driving, nor does a public order offence say much about a candidates suitability trustworthiness for book-keeping. With this in mind, what weight should an employer place on historical offences committed when the candidate was a juvenile?

The use of historic, juvenile criminal records has long been contested through the courts with campaigners highlighting the disproportional effect they can have across a person's working life. The most recent advancement in this area was on the 30th January 2019 where the Supreme court rejected a government appeal against a human rights ruling won by a group of people who asserted that their minor past convictions in their respective youth had held them back in their work life. The current system sees youth offences appearing on standard and enhanced Disclosure and Barring Service (DBS) checks until the offender is 100 years old.

The Supreme Court found that a job candidate having to disclose historic offences committed as a juvenile was incompatible with human rights legislation, specifically that such disclosures are disproportionate to a candidate's right to privacy and therefore the government has to reassess the current Disclosure and DBS checks procedure when considering such convictions. The Supreme Court found that the current disclosure regime for youth reprimands is "directly inconsistent" with the intended purpose, which is to air gap youth offenders from the adult criminal justice system and reduce the impact of the offences on their adult lives.

This ruling compounds previous investigations into the DBS disclosure regime for youth offences, one of which, a parliamentary inquiry in October 2017, found that the current process may contravene the UK's obligations under the UN Convention on the Rights of the Child.

The Chief Executive of Just for Kids Law, Enver Solomon, said in response to the ruling:

"There is now an overwhelming view shared by the higher courts and MPs that the government should act immediately to ensure no child who is given a caution ends up with a criminal record that stigmatises them for life."

Whilst any employment sector that is statutorily required to run DBS checks will be impacted, organisations that conduct their own criminal checks in their recruiting process should also take note of this case, and the recent changes in criminal personal data processing rules.

The use of criminal personal data was recently tightened with the introduction of General Data Protection Regulations, with employers having to not only carefully justify their processing of an individual's criminal data but also minimize the data used to only what is strictly necessary and very restrictive rules on when criminal data can be retained. Where the processing of a candidate's criminal data, outside of a statutory requirement, is in the 'legitimate interests' of the employer, a recorded decision should be made where the employer balances the purpose of the processing, whether it could be done in a less intrusive way and whether such processing is balanced against the individual's rights. This recent ruling has obvious implications for the latter variable in this equation.

Employers should use this ruling as a call to revisit their criminal employment checks, recalculating what exact criminal data they require and how they can minimize its use. This ruling by no means prevents such criminal records checks, indeed even some acts committed decades ago or in childhood may be still be very relevant to the position being applied for, but this ruling does reaffirm that organisations need to be diligent in their use of criminal data and give renewed consideration to a candidate's rights. Further advice can be given by Forbes Solicitors with regards to recruiting practices and compliance with data protection legislation. You can get in touch with the Commercial Team via commercialteam@forbessolicitors.co.uk or on 01254 222451.

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