· 2 min read · Features

Disclosure and Barring Service checking scheme may breach human rights law

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A Court of Appeal decision last month, could eventually lead to fundamental changes to the criminal records checking system.

In the case (R T and others) v Chief Constable of Greater Manchester and others, the Court of Appeal decided that blanket disclosure of all convictions and cautions an individual has had (as currently required by the scheme for checking criminal records) may unjustifiably interfere with that individual's right to respect for private life under Article 8 of the European Convention on Human Rights.

The case involved individuals who claimed that they had been prevented from advancing their careers or obtaining jobs because historic, minor, spent or irrelevant convictions had been disclosed as a result of the Disclosure and Barring Service (DBS), which was established last year as it merged together, the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA).

They included a case brought by T, who at the age of 11 received two warnings from Manchester Police in connection with two stolen bicycles. At age 17 he sought a part-time job at a local football club which involve contact with children. The club requested a criminal record check that revealed the warnings, which T believed to be spent. In September 2010, T enrolled on a university course which involved teaching and contact with children. Again, a criminal record check revealed the warnings.

The Court of Appeal accepted that legitimate aims were being pursued by both organisations which justified interfering with T's right to a private life, namely (i) protecting employers, children and vulnerable adults, and (ii) enabling employers to make an assessment as to whether an individual is suitable for a particular kind of work. However, the Court decided that 'requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate' to those aims. Specifically, it could not see what relevance the warnings had to the question of whether T was suitable for enrolment on the university course and having contact with children.

The Court of Appeal criticised the current scheme because it 'does not seek to control the disclosure of information by reference to whether it is relevant to the purpose of enabling employers to assess the suitability of an individual for a particular kind of work'. It therefore recommended introducing a filtering system, which takes into account the relevance of information about a person's criminal record to the job for which they are applying. It rejected the assertion that an employer can be trusted to assess the relevance of a conviction or caution by taking into account matters such as the seriousness of the offence, the age of the offender at the time and the lapse of time since it was committed. Evidence suggests that employers do not always handle and interpret the information correctly and fairly.

The Home Office applied for leave to appeal this decision to the Supreme Court. Until that application is resolved, the above decision will not take effect. If the Supreme Court rejects the application or the appeal, the Government will need to quickly change the current DBS system, to ensure it is fully compliant with human rights law.

In the meantime, this case serves as a useful reminder that employers making recruitment decisions should only take into account criminal convictions that are relevant to the job for which a candidate is applying.

Jonathan Bruck is a senior solicitor in the employment team at IBB Solicitors