Supreme Court rules that criminal record disclosure scheme breaches human rights – what does this mean for you?

30 January 2019

Olivia Percival – Advice and Information Officer

The Supreme Court has ruled that the Government’s criminal record disclosure scheme is disproportionate and therefore incompatible with the right to privacy, protected under Article 8 of the European Convention on Human Rights.

Liberty’s legal challenge focused on the “multiple conviction rule”, which requires any person with more than one conviction to disclose them on certain types of criminal records checks, no matter how much time has passed and how relevant they are to the job they are applying for.

Liberty’s client, known only as P, has gone through years of litigation to challenge this rule, which is stopping many people with old and minor convictions from moving on with their lives. P committed two extremely minor offences in 1999 whilst suffering from an undiagnosed mental illness, but continues to have to disclose these convictions because she wants to work as a teaching assistant.

The Supreme Court agreed with the Court of Appeal and the High Court that the multiple conviction rule was incompatible with Article 8. In a joined case, where the claimant was known as G, the Supreme Court ruled that the disclosure of childhood warnings and reprimands was also disproportionate.

What happens now?

Now that the Court has ruled that the current scheme is unlawful, the Government will have to consider how to respond.

Last time the Supreme Court ruled that the criminal records system was unlawful – in 2013 – the Government responded by overhauling the system, but the current scheme still does not adequately protect people’s rights.

The Government needs to consult widely and carefully on proposed changes to the system this time around.  Liberty is calling for the multiple conviction rule to be replaced with something which would allow for the relevance of old and minor convictions to be assessed, and which would strike a fairer balance between the rights of the public to protection from harm, and the rights of ex-offenders to move on with their lives.

What does this mean for you?

Despite the Supreme Court decision, the law will not immediately change.

If you are asked to undergo a criminal records check (known as a “Disclosure and Barring Service check” or “DBS check”), consider taking the following steps:

Step 1 – Look at what type of DBS check you will need

Firstly, you should consider what type of DBS check will be required for the job you are applying for:

  • A basic DBS check can be used for any position or purpose;
  • A standard DBS check is necessary for certain professions, and for employment in certain environments such as courts and prisons;
  • An enhanced DBS check is generally required for any work with children or vulnerable persons.

You can use this tool to find out which type of check your employer can ask for:

https://www.gov.uk/find-out-dbs-check

Step 2 – Make a subject access request to the police

Before you apply for a DBS check, it is a good idea to find out what information might be disclosed.

Under the Data Protection Act 2018, you have the right to access information about you which is being processed by the police. This includes your criminal record information. You can request a copy of this information by making a “subject access request” or “SAR”.

You can make a SAR for your criminal record information held on the Police National Computer, which includes information such as convictions, cautions, reprimands and warnings. To do this, you can submit a request online here:

https://www.acro.police.uk/subject_access.aspx   

You can also make a SAR to your local police force for locally held information. This includes things like statements, interviews and allegations made against you. The police may decide to disclose this information as part of an Enhanced DBS Check.

Your local police force should have a page on their website setting out how to make a SAR.

Step 3 – Work out what will be disclosed

Now that you know exactly what information the police hold about you, and what kind of DBS check you need to undergo, you will be able to work out what will be disclosed on your DBS certificate:

  • Basic DBS check – This will only show unspent convictions to your employer. A conviction is considered to be spent once its rehabilitation period is over. Further information on how convictions become spent can be found on the fact sheet: Disclosure of Convictions.
  • Standard DBS check – This shows all convictions (whether spent or unspent) and cautions, but some old and minor convictions and cautions will be ‘filtered’ once a certain period of time has passed. This rule does not apply to multiple convictions, as noted above, and it also does not apply to certain, serious offences. Further information can be found on the fact sheet: Standard DBS checks.
  • Enhanced DBS check – This contains the same information as the Standard check, however, additionally it can disclose any other “soft” intelligence held by the police that they reasonably consider is relevant and ought to be disclosed. This can include information such as details of allegations, arrests, and matters that resulted in no further action, but also any filtered convictions or cautions. Further information can be found on the fact sheet: Enhanced DBS checks.

Step 4 – Challenge the disclosure

You can challenge a Basic or a Standard check if you think the information included is wrong. See here: https://www.gov.uk/report-problem-criminal-record-certificate/appeal-against-a-mistake

For an Enhanced check, you can ask for a review of the decision to include soft intelligence, for example, if you think this is not relevant to the job you are applying for. You should complain first to the DBS using the link above, and if they do not reach a different decision, you can have your case reviewed by a body called the Independent Monitor.

 

Supported by the players of People’s Postcode Lottery, Liberty provides free human rights legal advice to thousands of people each year. Contact us if you’re in need of some advice to enforce your rights.