The Court of Appeal has decided that the current Government scheme for issuing criminal records certificates is incompatible with article 8 of the ECHR, which concerns the right to a private life.The litigation involved three cases illustrating the difficulties raised by these issues in practice. T, a 21 year old man of otherwise good character discovered that police warnings, received when he was 11 in connection to stolen bicycles, were having a detrimental impact on his employment and study prospects when they were revealed following criminal record checks. JB was unable to get work caring for vulnerable adults because of a shoplifting caution received 10 years ago. AW’s conviction for manslaughter and robbery was sufficiently serious to be categorised as never “spent” under the existing system. The Court allowed the appeals of T and JB, granting them a declaration of incompatibility. AW’s appeal was not allowed.
Audrey Williams, Head of Discrimination at Global law firm Eversheds LLP comments:
“While the Court of Appeal’s judgment supports the broad aims of the scheme, it decided that the scheme in its current form is incompatible with article 8. This will be a real blow to the Government which has only recently revamped CRB checks. It was only in December that the newly formed DBS took over the functions of both the Criminal Records Bureau and the Independent Safeguarding Authority.
“Nonetheless, some employers will welcome this judgment as they may feel poorly placed to assess the relevance of a old and minor convictions or cautions and would prefer the Government to make an informed judgment about whether to filter them out, as appropriate. As the court noted, employers do not always have the resources and training to fully weigh up and understand what is being presented to them when they receive criminal record checks and may simply decide to err on the side of caution. The Court of Appeal’s decision is unlikely to be the end of the road for this issue as the Government has already indicated that it is seeking leave to appeal to the Supreme Court.”