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The Rehabilitation of Offenders Act 1974 (ROA) was passed to assist the re-integration of ex-offenders by treating certain convictions as ‘spent’ and therefore not something that a prospective employer could take into account after specified periods of time. However, certain occupations - those working with children or vulnerable adults were excepted from the general rule and, in the context Disclosure and Barring Service (DBS) checks (previously Criminal Records Bureau (CRB) checks) applicable to these occupations, all convictions are revealed, regardless of when they occurred.
What has recently come under scrutiny is the relationship of the DBS/CRB system with the Human Rights Act 1998. The Human Rights Act obliges UK Courts to interpret the law in a manner compatible with the European Convention on Human Rights. Article 8 of the ECHR states that everyone has the right to respect for private and family life. That right is not absolute but anything which interferes with it has to be necessary and in the interests of national security, public safety and the protection of the rights and freedoms of others.
The question of whether the DBS/CRB system is compatible with the ECHR right to respect for private and family life was examined by the Court of Appeal in this case, in which the first individual was refused part-time work at a local football club and experienced difficulties in enrolling on a university sports course, both of which involved working with children, because the enhanced check revealed two warnings he received as an 11 year old relating to stolen bicycles. The second person was refused employment in the care sector when the check revealed a caution she received for the theft of some false nails eight years earlier. The third was rather different - she had been convicted of manslaughter and robbery at the age of 16.
As far as the first two individuals were concerned, the Court held that the convictions of this nature, although once a public affair, had effectively become part of the individual’s private life as they receded into the past. It is worth noting that police warnings are even issued in private and can clearly be argued to be part of an individual’s private life from the outset.
In the case of the third applicant, whose convictions were plainly of an altogether different nature, she had sought to argue that the idea that convictions could never be ‘spent’ meant that the system was fundamentally flawed. Perhaps reassuringly her application was ultimately refused.
Dealing with the argument that past convictions, even warnings and cautions, should be disclosed as they protect employers and vulnerable persons so fall within the exception to Article 8, the Court explained that, while serious offences, such as those of the third applicant, should always be disclosable and never spent for DBS/CRB purposes, the fundamental objection to the existing scheme is that it does not seek to control the disclosure of information by reference to whether it is relevant to the assessment of the suitability of an individual for a particular kind of work. In essence, the disclosure it provides is not proportionate to the issue that it is aimed at addressing, the protection of those with whom the individuals would be working.
The judgment of the three judges was published at the end of January and the Court held that the blanket and indiscriminate disclosure of convictions which the DBS system can deliver is incompatible with an individual’s right to a private life under the ECHR. This has put the government under real pressure to reform the DBS system with one of the judges, Lord Dyson, being quoted as saying that it should “pull its finger out”.
The Home Office has stated that it will seek permission to appeal to the Supreme Court but it appears that the government will need to act to overhaul the DBS system. For the moment, it will continue to operate and both public and private sectors employers employing people working with children or vulnerable adults will receive the information about each and every conviction.
However, public sector employers (for example, local authorities or companies receiving public funding) are likely to come under particular scrutiny if they adopt a blanket refusal policy for individuals with convictions.
Of course, the Courts do not have the power to legislate but, despite the administrative issues it would entail, it is impossible to dismiss the idea that a ‘filter system’ looking at things like the seriousness of the offence, the age of the offender, the sentence, re-offending and the nature of the work that the individual wishes to do will have to be introduced.