31st January 2019

On Wednesday 30 January 2019 the UK’s highest Court rejected government appeals against a human rights ruling won by a number of individuals who say their lives have been unfairly impacted by minor criminal offences committed long ago.

Following an earlier Court of Appeal ruling in 2013, the Government revised its criminal records disclosure scheme – which requires a person’s criminal history to be disclosed in circumstances such as applying for work with children or vulnerable people – to introduce a “filtering process”.

The revised scheme required disclosure of convictions only in a limited set of circumstances. These were where the conviction or caution was “current”, was in respect of certain specified offences, had resulted in a custodial sentence, or where the person had more than one conviction.

Legal action in respect of the revised scheme was brought by a number of individuals, who cannot be named for legal reasons. Each of the individuals challenged the adequacy of the revised scheme and argued that the amendments were insufficient to ensure compliance with Article 8 of the European Convention of Human Rights (ECHR) which protects the right to private life.

On 30 January 2019 the Supreme Court Justices upheld the High Court’s 2016 finding that the way criminal records are disclosed to employers under the revised criminal records disclosure scheme infringed human rights and was “not in accordance with the law”. The Justices also found that the government’s revised scheme was disproportionate in two respects. These were that all previous convictions should be disclosed, however minor, where the person has more than one conviction, and also in the case of warnings and reprimands issued to young offenders.

One of the individuals the Government lost its appeal to is a woman, referred to only as P, who in 1999 – shoplifted a 99p book, while suffering from a then undiagnosed mental illness. She was bailed to appear before magistrates 18 days later but due to her situation at the time failed to attend court which meant she ended up with two convictions for which she received a conditional discharge. P wants to work as a teaching assistant and has sought voluntary positions in schools. The current rules mean that with each application she has to divulge her two convictions and, in explaining the circumstances, reveal details of her medical history.

Another one of the individuals the Government lost its appeal to is a man, referred to as G, who was arrested at the age of 11 for sexually assaulting two younger boys. Police records indicated that the sexual activity was consensual and carried out as “dares”, in the form of sexual curiosity and experimentation on the part of all three boys. G received a police reprimand in September 2006 and has not offended since. In 2011 when working as a library assistant G was required to apply for an enhanced criminal records check because his work involved contact with children. The police at this time proposed to disclose the reprimand with an account of the mitigation. G therefore withdrew the application and lost the job.

The ruling by the Supreme Court has been welcomed by a number of individuals and charitable organisations and requires the government to consider reform of the system. The decision by the Supreme Court makes an important distinction between minor offences, (both in respect of lack of seriousness and the age of the offender) and more serious types of offence where public protection requires disclosure.

Blog by Katy Stephenson, Solicitor