To Disclose, or Not to Disclose…

To Disclose, or Not to Disclose…

A Disclosure and Barring Service (DBS) check , previously known as a Criminal Records Bureau (CRB) check, is a search conducted through the police national database in respect of any convictions, cautions, warnings or remands that an individual has received. Most individuals by the time they have reached adulthood will have been required to complete a DBS or CRB check application as part of a recruitment process or as part of an application for further studies. For the majority of applicants, the outcome of the check has no adverse implication on their ability to take their post or their place for study. However, for those applicants with cautions or convictions, no matter how minor or how long ago, it can seriously impede their chances of successfully obtaining employment or a place for study, and ultimately their chances of success in life.

The background to disclosure

The Police Act 1997 makes provision for the automatic disclosure, on consented application, of all recordable convictions and cautions that an individual has against them. The basis for this blanket approach to disclosure is that it acts as an important protection for employers, children and vulnerable adults.

For those applicants with cautions or convictions… it can seriously impede their chances of successfully obtaining employment…

Generally, the only exceptions to the rule of automatic disclosure are contained within the Rehabilitation of Offenders Act 1974, which provides that convictions, cautions, and warnings (‘convictions’) in respect of certain offences are to be deemed ‘spent’ after a certain period of time. Thereafter, the individual concerned is not required to disclose the convictions when questioned, and for all intents and purposes should be treated as if he had never committed the offence in the first instance. The 1974 Act aims to help people who have minor convictions or cautions, or a small number of them, in an attempt to abolish discrimination against ex-offenders.

Convictions are spent after a rehabilitation period which varies according to the offence. For example, for individuals aged 18 or over when convicted, convictions for minor crimes resulting in fines, compensation and community service become spent five years from the date of conviction. It is important to note at this point that if you were convicted as a minor (under 18) most rehabilitation periods are halved. However, sentences over two and a half years are never deemed to be spent (increasing to 48 months when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 Act comes into force).

Generally speaking, individuals are not required to disclose spent convictions to employers. However, certain types of employment require full disclosure: working with children, vulnerable adults or the elderly, senior banking, law enforcement and the judiciary.

The Criminal Records Review

In October 2010, the Criminal Records Review (CRR) was established by the Secretary of State for the Home Department to consider whether the current criminal records system struck an appropriate balance between an individual’s human rights, the rights of the general populous and the duty of the state to protect those rights with limited or justified interference.

A number of the CRR’s recommendations have already been implemented under the Protection of Freedoms Act 2012, which partly came into effect in September 2012, with further recommendations being debated and tried. One such suggestion which is proving popular amongst critics is the idea of a ‘filtering’ system. In regard to minor or trivial convictions, reference to the type of offence, the period of time since the offence was committed or the method of disposal for the offence would not necessarily be disclosed. The CRR were keen to disseminate that, whilst a filtering system is recommended to determine which convictions should be disclosed, the filter should not result in an absolute rule. The police should retain a discretionary power to disclose minor or trivial offences in exceptional cases. As such, it is important to note that the police already hold a common law power to disclose information to third parties if they hold a reasonable belief that it will protect others from harm or prevent a crime from being committed.

The case of T

In December 2012, the Court of Appeal were required to consider the case of R (on the application of T) v Chief Constable of Greater Manchester [2013] EWCA Civ 25. T was 11 years old when he received two warnings from Manchester Police in relation to stolen bicycles. At the age of 17, he applied for a job at a local football club wherein his CRB check revealed the warnings. Following representations, the police agreed to ‘step down’ the warnings so that they were not disclosable to third parties – a power which ceased in 2010. At the age of 19, T applied to study a course at university which involved teaching and contact with children, and as such, the university sought a CRB check. T, believing that the warnings were spent, and in any event ‘stepped down’, failed to disclose them on the CRB form. However, the check revealed these warnings. T issued judicial review proceedings claiming that the disclosure was incompatible with Article 8 of the European Convention on Human Rights.

The decision of the Court of Appeal

The Court of Appeal considered the following question in relation to the 1997 Act: are the provisions requiring disclosure capable of interfering with the right to respect for private life and, if so, is the interference justified? The Court considered that the disclosure of convictions could constitute an interference with an individual’s Article 8 rights insofar as it is disclosure of personal information which individuals may wish to keep private, especially as the convictions become more dated, and it is disclosure of historic information which could lead to an individual’s exclusion from employment and adversely affect their social integration.

The Secretary of State accepted that the provisions of the 1997 Act were capable of interfering with an individual’s Article 8 rights, but sought to justify the interference by stating that the disclosure of all convictions offered protection to employers, children and vulnerable adults and, in any event, only recordable convictions which necessarily involved a finding of fact or an admission that a criminal offence had been committed, were disclosable. The Secretary of State went further to suggest that the disclosure of a conviction does not automatically bar an individual from employment – it is the up to the discretion of the employer as to whether an offence should be regarded as minor and irrelevant for the purposes of that role.

It is a matter of striking the balance between an individual’s right to a private life… and society’s most vulnerable.

In handing down their decision, Lord Justice Richards and Lord Justice Davis accepted that there was an interference with T’s Article 8 rights which pursued both the general aim of protecting employers, children and vulnerable adults, and the aim of enabling employers to assess an individual’s suitability for a particular role. However, the Court went further to state that the disclosure of all convictions relating to recordable offences was disproportionate to those legitimate aims, as it did not consider whether the disclosure was relevant to that particular type of employment or post being applied for. The Lord Justices considered that the relevance factor must take into account the seriousness of the offence, the age of the offender at the time of the offence, the sentence imposed or the disposal, the time that has elapsed since the offence was committed, whether the individual has subsequently re-offended, and the nature of the work that the individual has applied for.

The Court thereby granted a declaration of incompatibility between the 1997 Act, the 1984 Act and T’s individual Article 8 rights.

Reforming the disclosure scheme for the future

In the past decade, a wealth of studies have been conducted concluding that there is a strong link between unemployment and re-offending. The results show that employment reduces the likelihood of re-offending by up to 50 per cent. With almost a fifth of the working population in the UK having a criminal record, and that record remaining disclosable in some cases up until their 100th birthday even for the most minor of offences, it is clear how any adverse affect on ex-offenders obtaining employment as a result of a blanket approach to disclosing all convictions could be detrimental to society as a whole.

The decision of the Court of Appeal in T has firmly echoed the concerns that many critics of the DBS and CRB scheme have been voicing for some time now. Not only has the scheme been criticised for its impact on individuals obtaining employment, but historically there have been a surprising number of innocent individuals branded ‘criminals’ as a result of inaccurate or incorrect checks, resulting in the further loss of employment opportunities.

In 2011, the CRB’s annual report stated that 4.1 million checks had been carried out in the UK. In the same year, Big Brother Watch stated that approximately 12,000 of those applicants were wrongly branded ‘criminals’ as a result of inaccurate or incorrect checks, with the cost of these inaccuracies or mistakes amounting to £1.9 million.

The results show that employment reduces the likelihood of re-offending by up to 50 per cent.

Although the decision of the Court of Appeal was heralded by human rights campaigners, a Government spokesman made it clear that the decision rested uncomfortably with them as their concerns were in respect of the protection of children and vulnerable adults. It is important to note that the incompatibility in the case of T was in respect of a blanket approach to disclosing all convictions to third parties regardless of the type of employment. Clearly, if the convictions are relevant to a particular type of employment (involving children or vulnerable adults for example) then all convictions will continue to be disclosed, and rightly so. The Lord Justices made it clear in handing down their decision that it is a matter of striking the balance between an individual’s right to a private life and the protection of employers and society’s most vulnerable.

Whilst the protection of children and vulnerable groups must not be compromised, neither must the rehabilitation of ex-offenders back into the community. If the disclosure scheme is not reformed as matter of urgency, there is a real chance that ex-offenders will not be given the opportunity to be rehabilitated and a vicious circle of criminality will ensue, resulting in further re-offending and an increasingly burdensome criminal justice system which continues to be bankrolled by the tax payer.

The CRR’s suggestion in striking the balance was to introduce a ‘filter mechanism’. However, no firm conclusion was reached in T as to the most appropriate ‘filter’ that should be used in assessing what convictions ought to be disclosed to third parties. It was deemed to be a matter of social policy for Parliament to consider. Regardless of what ‘filter’ future disclosures are made by, there can be no absolute rule for the disclosure of convictions as each case will have to be assessed on its own merits, having regard to the type of employment that individual is pursuing and the particular convictions they have. This will undoubtedly result in reduced efficiency, as it will take longer for the processing of each application and increase costs for disclosure units.

Efficiency and costs aside, it is most certainly a positive step forward for ex-offenders and those who have cautions or warnings on their records, as only those convictions, cautions or warnings that are relevant to the type of employment they are applying for will be disclosed in the future. It will then be for the prospective employer to determine the individual’s suitability based upon the information disclosed. It is hoped that this landmark decision by the Court of Appeal will go further in eliminating discrimination against individuals with criminal records and bring about employment opportunities that may otherwise have been out of reach.

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