DBS disclosure is contrary to human rights

03 March 2016

The Rehabilitation of Offenders Act 1974 (“ROA”) introduced a system whereby criminal convictions and cautions do not have to be disclosed in response to questions by employers and prospective employers when they are ‘spent’.

The 1975 Exceptions Order introduced exceptions to this system whereby certain specific categories of employment, including those working with children, would allow an applicant or employee to be asked to disclose spent convictions in addition to any that are unspent, provided that such questions are asked for the purpose of assessing the applicant’s suitability for the role. The individual should be informed they are obliged to disclose spent convictions. A failure to respond, or the giving of an untruthful response is a valid reason to withhold employment.

The excepted occupations qualify for checking through the Disclosure and Barring Service (“DBS”) which shows spent and unspent convictions and cautions, in addition to information on statutory lists and relevant police information in the case of enhanced checks.

In 2013, a filtering system was introduced so that single convictions for non-violent, non-sexual offences that did not lead to a custodial sentence or a suspended sentence are filtered out and not disclosed after a period of 11 years (or five and a half years if the offender was under 18 at the time of the offence). The policy rationale is that a first time offender should be given a second chance.

However, where an individual has more than one conviction, regardless of the relevant offences or the time since their commission, these will always show up on a DBS check.

The High Court has recently decided in favour of a group of applicants in a judicial review application on the ground that the above regime is incompatible with Article 8 European Convention on Human Rights (the right to respect for private and family life) and therefore requires further amendment.

In summary, the applicants have failed to secure paid employment in exempted occupations due to petty crimes committed long ago in early life. They have no subsequent criminal history but are caught by the requirement for ongoing disclosure of all but a single conviction.

The High Court observed that there is benefit in requiring ongoing disclosure of convictions for serious offences which are relevant to the individual’s suitability for a particular post. However, where the rules produce questionable results, the Court suggested that there should be some test of proportionality. In this way the application was upheld.

The Home Office has expressed disappointment in the judgment and has said it is considering whether to apply for leave to appeal. In the meantime, schools should take care to exercise balanced judgment when considering the weight to be attached to historic cautions and convictions, giving particular credence to their relative triviality and age.

By Ben Collingwood

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