Criminal record disclosure checks ruled ‘unlawful’

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Criminal record disclosure checks ruled ‘unlawful’

January 27th, 2016, Blog, Legal Updates

Any job which involves working with children or vulnerable adults requires the employer to carry out full criminal record checks on all new recruits.  The full/enhanced check will list all an individual’s previous convictions including spent convictions (i.e. the period of rehabilitation with no reoffending has passed) which are normally disregarded.

The law was, however, changed in 2013 to allow for a single (non-violent/non-sexual) conviction from 11+ years ago to be ‘filtered out’ from the record, i.e. not disclosed.

This case concerns two individuals who both had two minor convictions from over 30 years ago whose careers were being blighted by having to disclose these spent convictions to employers for jobs that required disclosure.

The Court’s decision was that it was not justifiable or necessary for any individual to have minor offences disclosed indefinitely from many years ago, merely because there is more than one minor offence which meant it was outside the filter scheme. The scheme was arbitrary and unlawful under Article 8 of the Human Rights Act i.e. the right to a private and family life.

If the Government does not successfully appeal the decision, then it will need to change the criminal record check scheme and perhaps adopt a less rigid approach so that minor convictions committed many years ago are disregarded and allowing individual circumstances to be taken into account, whilst maintaining protection for vulnerable individuals. It is interesting that the Human Rights Act has been used yet again to declare a government scheme unlawful.

Two people who claimed their careers were being blighted by having to disclose their minor criminal convictions to employers have won their case at the High Court.

The court ruled the criminal record checks scheme used in England and Wales was “arbitrary” and unlawful.

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