HR Alert: Government challenge change on criminal records checks

SOME prospective employees in England and Wales may not have to disclose their criminal records following a landmark court ruling.

SOME prospective employees in England and Wales may not have to disclose their criminal records following a landmark court ruling.

The Court of Appeal decided that a requirement to disclose criminal convictions when applying for certain jobs is a breach of a person’s human rights. The scheme in Scotland, known as Protecting Vulnerable Groups (PVG), is not under review.

The government, however, is set to challenge the ruling. At the heart of the Court of Appeal ruling is the issue of declaring ‘spent’ criminal convictions – crimes, often minor, which were committed a long time ago.

The disclosure of old convictions and cautions was designed to protect children and vulnerable adults. Those applying to work with those groups must be subject to an enhanced check under which spent convictions are disclosed.

A number of recent cases led to the Court of Appeal ruling.

The first involved a 21-year-old man who discovered that police warnings he had received in relation to stolen bicycles when he was 11 years old were being disclosed, causing a detrimental effect on his employment and study opportunities.

Another case concerned a female who applied to work with vulnerable adults and was refused as her disclosure revealed she had received a shoplifting caution 10 years prior. The final case was that of another female who had a conviction for manslaughter and robbery, which would never be deemed ‘spent’ under the existing system.

The argument made was that disclosure of such convictions interfered with the right to a private life, under article 8 of the Human Rights Act.

The Court of Appeal accepted the need for criminal records checks but ruled that disclosure of all convictions and cautions, including spent ones, was disproportionate - especially where people were children at the time of the offence. They felt that this approach was incompatible with the right to a private life.

The Court of Appeal backed the first two appeals but the third, with the unspent conviction for manslaughter and robbery, was refused as the Court took the view that some offences are so serious they should always be disclosed.

The government is taking its case to the Supreme Court. But if the Supreme Court backs the Court of Appeal’s decision then the current criminal records check system will have to be reformed to introduce a ‘proportionate system’.

In the meantime, while it is under review, it is business as usual for those who wish to continue undertaking such checks.