Chipping away at the automatic disclosure of childhood, old and minor criminal convictions

Over 10 million people in the UK have a criminal record, a huge number of whom face difficulties in getting a job. Convictions become spent after a certain period, depending on the nature and length of the sentence, and so do not have to be disclosed on job applications. However, people working or hoping to work in certain fields are exempt from this, including:

• those working closely with children or vulnerable adults,
• healthcare professionals,
• those working in the financial sector,
• lawyers,
• police officers, and
• those requiring a licence (e.g. taxi drivers, gun owners, betting shops).

Prior to May 2013, individuals affected had to disclose their spent convictions, including childhood convictions.

However, the Home Office has faced a succession of defeats in the courts on its rules about when convictions should be disclosed. As a result, narrow exceptions were introduced in May 2013, so that certain old and minor cautions and spent convictions are protected - in most cases, these no longer have to be disclosed to (potential) employers and are filtered out of a standard or enhanced DBS (formerly CRB) certificate.

This change was brought in after the old rules were challenged in an appeal called 'T'. T was a young man who, as an 11 year old boy, received two warnings from Manchester Police in connection with two stolen bicycles. He believed that the warnings were spent, but they were disclosed in criminal record checks when he applied for a part-time job at the local football club at age 17 and again when he enrolled on a sports studies university course at age 19. JB, another claimant in the appeal, was a woman who applied for a job in the care sector but was rejected when her caution received eight years earlier for theft of some false nails was disclosed in a DBS certificate.  The courts decided that the system then in place interfered with the right to private life and that, although the aims of the scheme were legitimate, the way that the scheme worked was disproportionate to that aim. Basically, they were using a sledge hammer to crack a nut.

After the 2013 changes, many said that the filtering system was too limited and did not allow individual circumstances to be taken into account. They said that the Home Office had not struck the right balance between the right to private life of those with convictions and allowing them the chance to put their pasts behind them and become productive members of society on the one hand, and the legitimate aims of protecting employers and vulnerable persons and enabling employers to make an assessment about whether an individual is suitable for a particular type of work on the other hand.

The Court of Appeal in the recent case of 'P' agreed - it found that the current filtering regime is inadequate and incompatible with the right to private life. P committed two offences of shoplifting while suffering from undiagnosed schizophrenia in 1999. She was cautioned for the first offence, and prosecuted for the second. Due to her condition and her homelessness, she failed to appear at court and was convicted of the second theft offence and failure to surrender to custody while on bail. She was discharged conditionally in respect of each offence, but they were still two convictions. This affected her ability to later get paid employment as a teaching assistant, and meant that she would have to explain her past mental health history to potential employers. The Court reiterated that any filtering system has to be proportionate in how it sought to reach of its aim of protecting the public, and that the current scheme does not achieve that.

A recent case concerning victims of child sexual exploitation with childhood convictions relating to prostitution resulted in another successful challenge to the legality of the criminal record disclosure scheme.

Meanwhile, the decision in P has been appealed to the Supreme Court and is due to be heard in June 2018. The charity Unlock have permission to intervene in this case to put forward arguments on behalf of everyone who is unfairly affected by the criminal records disclosure regime. They report that, in the last five years, nearly half a million childhood convictions were disclosed that were from over 30 years ago. This represents almost half of all childhood convictions disclosed. Another half a million convictions disclosed over this time were from when the person was aged 18-21 but dated from more than 30 years ago.

The outcome of the Supreme Court appeal is eagerly awaited. In the meantime, efforts will continue to make sure that the disclosure of convictions, as well as of contact with the criminal justice system falling short of a conviction (which is governed by different rules), is properly controlled so that it is only done in the cases where it is strictly necessary. The same is true of disclosures affecting people who have never been suspected of any criminal offence but who may have partners or relatives living with them who have committed offences, causing difficulties with jobs like childminding.

If you have been affected by a disclosure or a proposed disclosure, you can contact our Civil Liberties Team to see if we can help.