Liberty client wins landmark Supreme Court case on criminal records disclosure

30 January 2019

The Supreme Court today ruled that the criminal records disclosure scheme is incompatible with human rights law, becoming the third and most senior court to agree with Liberty’s long-term campaign to ensure the Government fixes its punitive and regressive system.

Our client, known only as “P”, challenged the Home Office’s Disclosure and Barring Service (DBS) rules that force people with more than one conviction – no matter how minor or historic – to disclose them in job applications.

The Supreme Court has today agreed with our arguments and found that the law as it is currently framed is incompatible with Article 8 of the Human Rights Act because it is disproportionate. Two courts had already found in P’s favour. In May 2017, the Court of Appeal agreed with the High Court’s decision a year earlier that the current system breaches people’s right to a private and family life.

The Government appealed against the decision, delaying the urgently needed reform the lower courts called for, and sending the challenge to the UK’s highest court.

The case in brief

P committed two extremely minor offences – stealing a 99p book, then missing her hearing at a Magistrate’s Court – while suffering from an undiagnosed mental illness in 1999.

P has committed no crime since these convictions. A diagnosis of Schizophrenia has helped her manage her mental health, and she aspires to be a teaching assistant, to make the most of her previous teaching experience.

Under current Disclosure and Barring Service (DBS) rules, P is required to disclose her convictions when applying for jobs and voluntary positions. This leads to conversations about her medical history, and she has been frustrated in her attempts to work.

“P” said:

“I am glad that this case is over, but will only celebrate when the Government finally changes the law and enables me to move on, to work and finally make plans for my future.

“The current rules have left me and many others unable to move on with our lives and contribute to our communities. I hope the Government accepts the court’s judgment and creates a just system that fairly considers individual circumstances.”

Corey Stoughton, Advocacy Director at Liberty, said:

“P made a mistake a long time ago and has been unfairly punished ever since. Using overly broad bureaucratic rules that effectively deny people meaningful careers by forcing them to carry a scarlet letter for life is both cruel and pointless.

“Today’s court decision holds the promise of a fresh start for thousands of people who deserve a second chance. The Government must finally reform this disproportionate scheme.”

Serious Offence

P’s case was heard alongside three others. Another claimant challenged the “multiple convictions” rule like P, and two claimants challenged the “serious offence” rule, that requires them to disclose serious offences they committed as children.

Unlock, which campaigns on behalf of reformed offenders, intervened in the case, arguing that such blunt and harsh rules undermine rehabilitation of offenders and leave people, including those whose crimes were in childhood, carrying stigma for the rest of their lives.

Christopher Stacey, co-director of Unlock, said:

“We welcome today’s judgment by the Supreme Court. Unlock intervened in this vital case to help the court understand the importance of the issues. We are pleased the court has ruled that two aspects of the criminal records disclosure scheme are disproportionate and in breach of Article 8 of the European Convention on Human Rights; in particular, the blanket rules which require the automatic disclosure of all convictions where a person has more than one conviction, and the requirement that some childhood cautions be disclosed indefinitely. This is an important ruling which stands to affect many thousands of people with old and minor criminal records who have been unnecessarily anchored to their past.

“Today is a crucial step towards achieving a fair and proportionate filtering system that takes a more calibrated and targeted approach towards disclosing criminal records. Recent reviews by the Law Commission, Justice Select Committee, Charlie Taylor and David Lammy MP have all stressed the need to look at the wider criminal records disclosure regime. It is now time for the government to act. We strongly urge the government to take prompt and considered action on the filtering system, as well as committing to carrying out a fundamental review of the wider criminal records disclosure regime.”

We believe a more flexible system, which considers individual circumstances in cases of old and minor convictions, should be introduced. This should make clear that people would still have to declare any offence which indicates that they might pose a risk of harm in the course of their employment, but would allow those with more than one conviction for less serious offences to move on.

 

For interviews and further detail contact the Liberty press office on 0207 378 3656 / 07973 831 128 or pressoffice@libertyhumanrights.org.uk

Notes to editors: The current system

  • The Police Act 1997 created the Disclosure and Barring Service (DBS – formerly the Criminal Records Bureau), which provides details of a job applicant’s previous convictions to prospective employers. For certain types of work, particularly work with children or vulnerable adults, the standard or enhanced certificates issued by the DBS used to list all the job applicant’s previous convictions.
  • However, in 2013, the Government amended this scheme following a Court of Appeal ruling (T v Chief Constable of Greater Manchester) to introduce a “filtering” process. Single convictions for non-violent, non-sexual offences that did not lead to a custodial sentence (including a suspended one) will be “filtered” (i.e. not disclosed) after 11 years (five-and-a-half years if the person was under 18 at the time of the offence).  
  • The new filtering process does not apply if a person has more than one conviction – regardless of the minor nature of the offences or the person’s circumstances at the time.
  • The Rehabilitation of Offenders Act 1974, which governs the circumstances in which a person has to admit to a previous conviction if asked, operates in a similar way. A person applying to work with children or vulnerable adults does not have to disclose a conviction which is “filtered”.