A recent topic in the news is that of a recent Court of Appeal ruling relating to the disclosure of previous criminal convictions in employment applications. Specifically, applications for jobs which involve contact with vulnerable categories of people such as children or the elderly. To be able to work with vulnerable people, a prospective employee must undergo what is known as an Enhanced Criminal Record Check (ECRC). People who apply to adopt children, and prospective barristers are also amongst the groups of people who must undergo an ECRC.
The ECRC application process requires all previous criminal convictions to be disclosed, even if spent (even thought the purpose of a conviction becoming spent is that is no longer has to be disclosed).
The case at the heart of the ruling was that of a job applicant known as T. Somebody who during his employment application had to disclose a police warning he received at the age of 11 regarding a stolen bicycle. This was something that T, along with leading human rights campaigners Liberty, argued was a breach of his human rights. Specifically Article 8 of the ECHR as incorporated into domestic law by the Human Rights Act 1998; the right to a private and family life.
Delivering the ruling in the Court of Appeal, the Master of the Rolls, Lord Dyson said the disclosure of old convictions and cautions was designed to protect children and vulnerable adults. However, he said “requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate to that legitimate aim”.
It must be noted that the rules surrounding Criminal record checks were made a lot stricter after the infamous case of Ian Huntley, who was jailed for life in 2003 for the murder of Holly Wells and Jessica Chapman. A case where no background checks had been made on Ian Huntley, who had been placed in a job as a local school caretaker.
It is cases such as these that give the government ammunition to be able to keep the current rules in place, despite the Court of Appeal ruling. The Government plan to appeal against the decision, in the meantime the Court of Appeal has stated the ruling will not take effect until the outcome of the appeal.
So for now there will be no change in the law, but an interesting topic of discussion nevertheless. How far should the government go in relation to the recording of minor criminal offences without crossing the ‘human rights’ line? What would be a proportional response to the threat to our vulnerable members of society? These questions may be answered by the Supreme Court, and when they are Urban Lawyers will be discussing the implications those answers will have on anyone concerned.