Criminal Records Checking System Unlawful

3 mins

Posted on 30 Jan 2013

The Court of Appeal has held that the criminal records checking system which requires the disclosure of all recorded convictions and cautions is incompatible with the right to a private life under Article 8 of the European Convention on Human Rights.

In R (on the application of T) v Chief Constable of Greater Manchester and ors,T received two police warnings at the age of 11 in connection with stolen bicycles.  At the age of 17 he sought a part-time job at a local football club which involved working with children.  He later enrolled on a university course which involved teaching and contact with children.  In both instances an enhanced criminal records check revealed the police warnings.

T brought judicial review proceedings challenging the lawfulness of the criminal records checking system.  The High Court dismissed his claim and he appealed to the Court of Appeal. 

The Court of Appeal accepted that the interference with T’s Article 8 rights was in pursuance of the legitimate aims of protecting employers, children and vulnerable adults and enabling employers to make an assessment as to whether an individual is suitable for a particular kind of work.  However, it considered that requiring the disclosure of all convictions and cautions was disproportionate. 

It was difficult to see how T’s police warnings were relevant to his suitability to be enrolled on a university course which involved having contact with children.  The Court’s fundamental objection to the system was that it ‘does not seek to control the disclosure of information by reference to whether it is relevant to the purpose of enabling employers to assess the suitability of an individual for a particular kind of work’.  Relevance depends on a number of factors including the seriousness of the offence; the age at the time of the offence; the sentence imposed; the time that has elapsed since the offence was committed; whether the individual has subsequently re-offended; and the nature of the work that the individual wishes to do.  The Court rejected the argument that an employer can be trusted to assess the relevance of a conviction or caution by taking these factors into account.  The evidence suggests that employers do not always handle and interpret the information correctly and fairly.

In view of the Court’s decision in this case, it will now be for Parliament to devise a proportionate scheme for checking criminal records.  In 2011, the Criminal Records Review recommended the adoption of a process for filtering out old and minor convictions and cautions.  The Government accepted the recommendation but came up against practical difficulties in defining and implementing an appropriate and effective filtering process.  However, it is continuing to work on this.

Although changes are currently being made to the criminal records checking regime by the Protection of Freedoms Act 2012, those changes do not affect the decision in this case.  The Government has said that it will appeal to the Supreme Court.  

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