This week the Court of Appeal has
ruled that laws requiring people to disclose all previous convictions to
certain employers are incompatible with human rights.
The case centred on an individual
known as T. When he applied to study a sports course at university (which
involved working with children) he was required to disclose police warnings he
received aged 11 over two stolen bicycles. He contended that the system of criminal
record checks (commonly known as CRB checks) which requires a person to
disclose all convictions and warnings to certain employers, irrespective of the
age of the warnings or convictions, was incompatible with his right to a
private life under Article 8 of the European Convention on Human Rights (ECHR).
The Court of Appeal agreed. While
it accepted that the system is designed to protect employers and the children
and vulnerable adults in their care, it held that the need to disclose all convictions
and warnings was disproportionate to that aim. The blanket nature of the system
was wider than necessary to achieve the purpose of protecting children and
vulnerable adults. The court said the fundamental objection to the system was
that it does not seek to control the disclosure of information according to
whether it is relevant to allowing employers to assess if an individual is
suitable to be employed. The court has therefore ruled that the relevant legislation
is incompatible with human rights. As expected, the government has said it
intends to appeal the decision.
Notes on the law
This case shows a classic issue
within human rights law; namely, the need to balance competing rights.
The Rehabilitation of Offenders
Act 1974 (and other laws) creates a system which allows an individual to treat
certain convictions and warnings as ‘spent’. That is to say after a certain
amount of time an individual can treat themselves as having never committed an
offence. They do not need to tell most employers about their offending and
cannot be refused employment because of it. However, for certain positions,
many of which involve working with children and vulnerable adults, the law
requires all previous offences and warnings to be declared. It was this part of
the system that affected T.
Article 8 of the ECHR provides
that we all have a right to a private life. In the case of T the court accepted
that CRB checks interfered with this right as the cautions were issued in private.
More generally, the court accepted CRB checks can interfere with the right to a
private life because it can lead to exclusion from employment, where individuals
form relations with others. Article 8 does, however, allow interferences with
our private life if it is necessary to achieve certain aims. In other words, interferences
with the right to a private life can be justified if they are proportionate to
certain aims. One of those aims is the protection of the rights of others. So
in the case of T, CRB checks were intended to protect the rights of children
and vulnerable adults, which the court accepted. However, the court could not
accept that it was necessary to require the disclosure of all previous convictions and warnings. The court said it simply was
not necessary to disclose all convictions and warnings when some are so old and
minor that they are totally irrelevant. This stepped too far into T’s right to
a private life.
The court was required to examine
the balance between one person’s right to a private life and the need to
protect the rights of others. It decided here that the balance struck by the
current law was wrong.
The future of CRB checks
Assuming that the judgment is not
reversed on appeal, the law will need to be amended. The court suggests that in
the future a filter system can be used to exclude certain convictions and
warnings from CRB checks based on the age of the conviction/warning, the age of
the individual at the time of the conviction/warning, the severity of the
offence etc. The court said it would not be appropriate to allow the current
system to continue and require employers to determine if a previous
conviction/warning is relevant to an individual’s suitability for employment because
often a previous conviction/warning would be a ‘killer blow’ to an individual’s
employment prospects. This must surely be correct; the court is quite right to
fear that employers would simply choose individuals without previous
convictions/warnings.
It will be very interesting to
see the outcome of any appeal and how the current system might be changed. What
are your thoughts? Should all convictions and warnings continue to need to be
disclosed when applying for certain jobs?
The judgement can be read in full here: http://www.bailii.org/ew/cases/EWCA/Civ/2013/25.html
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