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International News

England's CRB Records Found Breaching Privacy Laws

July 21, 2014 posted by Steve Brownstein

  In the case of R (on the application of T)  v Secretary of State for the Home Department, the Supreme Court had to decide whether the UK’s criminal records system breached the right to privacy contained in the European Convention on Human Rights (Article 8).

  The European convention provides the right to private and family life, but says this right may be interfered with “in the interests of national security, public safety …. or for the protection of the rights and freedoms of others”.

  UK law on the disclosure of criminal convictions is primarily contained in the Rehabilitation of Offenders Act 1974, the purpose of which is to minimise possible prejudice against those with criminal convictions. It requires that most criminal convictions, cautions, warnings and reprimands (excluding offences that result in a prison sentence of at least 30 - soon to be 48 – months) should be treated as "spent" after specified periods of time.

  Employers cannot use an employee’s failure to disclose a spent conviction as grounds for dismissal or use it as a reason to exclude a job candidate from employment, except in relation to certain exempt occupations, primarily those involving contact with children and vulnerable adults. When an employer carries out a criminal record check on a current or prospective employee, the standard certificate issued will not include any reference to spent convictions or cautions, unless the request has been made in the context of an exempt occupation. 

  The Court of Appeal decided that disclosing all their convictions and cautions without considering their relevance in an employment contest was disproportionate and breached Article 8.The Home Office appealed, but at the same time issued some amendments to the scheme, which narrowed the type of spent convictions that could be disclosed in relation to an exempt occupation - for example, excluding juvenile offences that did not result in a custodial sentence and other “historic” offences that were at least 11 years old.

  The Supreme Court upheld the Court of Appeal’s decision, finding that the existing criminal records scheme provided no means of filtering information so only those convictions/cautions relevant to a particular job application were disclosed. The court did note that the recently introduced changes did produce a “more calibrated system”, but expressed no definitive view on whether these changes sufficiently addressed the Court of Appeal’s concerns.

  It is possible that the amended regime may be open to challenge in the future. In the meantime, employers now have no alternative but to base recruitment decisions on the more limited information made available to them under the amended criminal records scheme, a situation which has already attracted criticism from a number of quarters.