All police cautions and minor convictions should not have to be disclosed in criminal record checks, the Supreme Court has ruled.
The Rehabilitation of Offenders Act 1974 provides that, after a period of time, a person’s criminal convictions are spent, so they do not need to be disclosed in an application for employment.
However there is a regime under which, for certain jobs (such as those working with children and the vulnerable) all convictions and cautions which would otherwise have been spent were disclosed. This regime meant that prospective employees who have received minor cautions in their youth or perhaps faced prosecution for unrelated offences such as joy riding as a child, were being rejected for erroneous facts unrelated to the fitness to work with those classes of people requiring protection. Of course some would argue that once a thief always a thief – but the law disagrees ergo the rehabilitation period.
In the Court of Appeal case last year, Judges said any blanket requirement to disclose so would be incompatible with human rights legislation in England and Wales. The judge accepted the disclosure of old convictions and cautions pursues the aim of protecting children and vulnerable adults, however the ‘the statutory regime requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate to that legitimate aim. After that ruling, the judges said it would be a matter for Parliament to decide what amendments to make to records check rules.
Home Secretary Theresa May and Justice Secretary Chris Grayling appealed asking the Supreme Court to consider whether disclosure requirements were compatible with human rights legislation following rulings in the High Court and Court of Appeal.The Home Secretary appealed to the Supreme Court.
This week the Supreme Court has confirmed ruled that a blanket requirement on job applicants to disclose minor offences, including cautions, amounted to a breach of their right to a private and family life under Art 8 of the European Convention of Human Rights.
Although the judgement was issued in December 2012, it has just come into the public domain. Lord Dyson, the Master of Rolls, delayed publication to give the Home Office time to prevent the potential legal implications ‘plunging the criminal record checks system into chaos.’ But Theresa May has done nothing. Lord Dyson commented: ‘It is extraordinary that nothing has been done. The government needs to pull its finger out and introduce legislation.’
What do employers need to do?
As of now, the disclosure rules remain the same, but for sure, the Government have to make changes to the existing regime but more importantly employers need to review their practices to ensure that disclosure rules relate only in so far as they need to safeguard those groups of people in their charge (or face the potential claims in the High Court).
You can hear the full judgement on YouTube.