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Criminal record disclosure checks ruled 'unlawful'

02/02/2016 Criminal record disclosure checks ruled 'unlawful'

The Disclosure and Barring Service (DBS) (formally the Criminal Records Bureau (CRB)) in England and Wales, provides details of a job applicant's previous convictions.

Employers are required to use the checks when employing people for certain types of work, particularly work with children or vulnerable adults.

The standard or enhanced certificates issued by the DBS used to list all the job applicant's previous convictions. However in 2013, the government amended this scheme following a Court of Appeal ruling to introduce a filtering process. Single convictions for non-violent, non-sexual offences that did not lead to a suspended or custodial sentence are not disclosed after eleven years or five and a half years if the person was under 18 at the time of the offence. The new filtering process does not apply if a person has more than one conviction - regardless of the minor nature of the offences or the person's circumstances at the time.

In a recent case at the High Court, two people who claimed their careers were being affected by having to disclose their minor criminal convictions to employers have won their case. The court ruled the criminal record checks scheme used in England and Wales was "arbitrary" and unlawful.

Lord Justice McCombe said 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.

He described the results of the current system as "arbitrary" and said "where the rules are capable of producing such questionable results, on their margins, there ought, it seems to me, to be some machinery for testing the proportionality of the interference, if the scheme is to be in accordance with the law".

The Home Office said it would consider whether to appeal against the decision.

This ruling will bring reassurance for many people who have had their ambitions dashed because of mistakes they made in the past.

In the meantime, the scheme will continue to operate as at present.

Fiona Haworth. You can contact Fiona on fiona@practical-hr.co.uk

 


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