The Court of Appeal ruled in R (T & others) v Chief Constable of Greater Manchester & others last week that forcing would-be employees to disclose all previous criminal convictions to prospective employers is an infringement of Article 8 of the European Convention on Human Rights, breaching the right to a private life. The Rehabilitation of Offenders Act 1974 allows job candidates and others not to refer to criminal offences which are “spent”, but certain occupations are excluded from the Act, meaning that full disclosure can be required. This case challenged the validity of those exclusions.
The Court of Appeal decided that in two of the three cases they heard, the past convictions of the applicants were simply not relevant to the posts that they had applied for. The cases concerned T, a 21 year old man, who had been given a caution at the age of 11 for stealing two bicycles, and TB, a woman with a 10 year old shoplifting conviction for stealing false nails from Superdrug. Both convictions were deemed irrelevant by the Court of Appeal. TB had applied to be a carer with vulnerable adults; T was trying to get a job at a children’s football club and applying to University.
Thankfully the Court of Appeal put the brakes on a third claimant who had been involved in a carjacking that had left a man dead when she was 16. She wanted to join the Armed Forces. The Court of Appeal has clearly drawn some kind of line in the sand here, decade-old spent convictions for stolen bicycles and false fingernails, ok. Carjacking resulting in a death? Not ok.
The Court stated that a regime which requires disclosure of all convictions and cautions, however old or trivial, is disproportionate to the legitimate aim of protecting children and vulnerable adults. Home Secretary Theresa May now has the opportunity to appeal, and there are reports that this will be the case. Should the appeal be lost at the Supreme Court it could signal yet another overhaul of the new criminal records regime even though it is still only in its infancy.
Civil rights body Liberty has welcomed the judgement, stating that the current law has ‘blighted’ people’s lives and that a proper balancing of public protection and privacy should be sought. Some employers may welcome the changes as they feel unable to assess the relevance of old or minor convictions; however, there are equally those who feel that the young and vulnerable have interests that override those of people with previous convictions.
This is unlikely to be the last we hear of this decision, and it will be interesting to see where the line is drawn and how employers are expected to deal with it in practice. If a wrong decision is taken and a vulnerable person is placed in a position of risk, the repercussions could be devastating, but on the other hand is it right that a long-ago indiscretion, especially committed as a juvenile, should live with you forever and blight your life and career forever?