BBC article: 'Criminal record disclosure checks ruled 'unlawful''

[yorkie]

http://www.bbc.co.uk/news/uk-35383037

Two people who claimed their careers were being blighted by having to disclose their minor criminal convictions to employers have won their case at the High Court.

The court ruled the criminal record checks scheme used in England and Wales was "arbitrary" and unlawful.

People across the UK are forced to have their criminal record divulged when applying for certain jobs.

The Home Office said it would consider whether to appeal against the decision.

Lawyers for the pair had told the High Court that people were being unfairly disadvantaged throughout their lives by convictions for minor criminal offences committed years beforehand.

Shoplifting

One woman, referred to in court as P, was charged with shoplifting a 99p book in 1999 while suffering from a then undiagnosed mental illness. She later failed to attend court, which meant she ended up with two convictions - for which she received a conditional discharge.

The woman, 47, who now wishes to work as a teaching assistant and has sought voluntary positions in schools, argued that having to disclose her criminal record, and subsequently her medical history, was disproportionate and breached her right to privacy.

Her case was heard alongside that of another claimant, A, who was convicted of two minor thefts in 1981 and 1982 when aged 17 and 18.
He has since worked as an accountant, company finance director and is now a project manager - work that often requires due diligence and criminal record checks. He was concerned he would be forced to disclose his convictions and that his family might learn of them.....

I have more sympathy for the second case than the first, as minor wrongdoing at 17 or 18 really shouldn't be taken into account many years later, even if there are two of them. I also know of people who received cautions aged under 18 on the promise they would be wiped from their records when they turned 18 and that promise turned out to be not quite true.

Would this ruling affect the reporting of Regulation of Railways Act offences on DBS checks?

Also, can anyone confirm that the ruling applies to enhanced DBS checks as well as standard checks? I have seen a fair bit of confusion over the differences between the two (and when people come along to clarify there can be disagreement among apparent experts!)

 

[deltic]

As Chair of Governors at a primary school I was shocked to discover I was responsible for assessing whether a person with a criminal record was suited to work/volunteer at the school. We had many cases like that of the lady mentioned who had committed some trivial offence 20 years ago which had no bearing with their ability to work with children. We then had others who had committed much more serious offences where I tried to seek guidance of whether there was a risk but there was little forthcoming.

A far better system in my view would be one where an expert panel reviewed someones criminal record and advised the organisation that wished to employ them whether there was any concern about that person - so in the case of someone who had committed some trivial offence 20 years ago of no relevance to the job - the response would be that the risk was low without actually disclosing whether the individual had a criminal record or not.

This to be would both be a far safer system as well as removing the need for a person's criminal record to be disclosed to a potential employer.

 

[yorkie]

deltic - that sounds a good idea to me.

 

[swj99]

There are so many exceptions in the Rehabilitation Of Offenders Act 1974 and chapter 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 that you could be forgiven for questioning the use of the word rehabilitation.
Some people are never allowed to fully move on, sometimes long after they have paid their debt to society, even in the event of very minor transgressions such as the theft of a 99p book mentioned in the news report.

It wouldn't do any harm at all for society to seriously consider exactly what is intended to be achieved by some of this disclosure. For example, in the case of someone who's nicked a 99p book, and assuming there have been no further offences since, how on earth can the theft be relevant to anything ?

 

[rdeez]

I found the title of that article somewhat misleading as the issue seems to be not the fact that convictions are disclosed but the fact that minor convictions continue to be many years after the event.

It is wrong in my view that a relatively minor crime should continue to form a part of someone's record for employment purposes for so long, without regard to age, severity or circumstance in many cases.

I used to work as the deputy manager of a care home. Obviously all prospective employees were subject to an enhanced disclosure, and I once found myself in the position of having to fill out a risk assessment and suitability for employment assessment running into 20+ pages, along with detailed rationale for my decision, for an employee who had a conviction on their disclosure...the crime? Driving while over the limit, when the individual was 18 (several years previously). They were not required to drive, either in her own vehicle or a company vehicle, as part of the job - other than getting to / from work, if they chose.

 

[DaveNewcastle]

I think the issue turned on the question it being proper that more than one conviction, however trivial, would render the convictions 'visible' when checked, whereas if there had only been one conviction, it would not have been made 'visible'.

The case is known as P and A, R (on the application of) v Secretary of State for Justice & Ors, its citation reference is [2016] EWHC 89 (Admin) and the judgement can be read here.

The substantial parts of the decision are in paras 84 onwards.

Would this ruling affect the reporting of Regulation of Railways Act offences on DBS checks?

Also, can anyone confirm that the ruling applies to enhanced DBS checks as well as standard checks?

Further argument will be heard to assist the Court in making directions (to the Home Office principally). But as we've discussed previously, it is not for the Court to change the procedure, but for Parliament to legislate it. And tempting as it often is, the Court won't change the rules. We'll have to see what emerges in due course. What we can take from this is that the disclosure of two minor crimes in the distant past which would only be disclosed because there are two of them has been described as 'arbitrary' and consequently is incompatible with the person's Article 8 rights. The relevant programatic procedure is described in plain language in paragraph 18.

"1. Is the conviction defined as minor? If not then disclose.
2. Does the individual have a single minor conviction? If not then disclose.
3. Was the single minor conviction received before the person was 18? If yes then the conviction will not be disclosed if it is spent and more than six months old.
4. Was the single minor conviction received after the person was 18? If yes then the conviction can be filtered out if it is spent and it is more than 3 years old."
[and]
"A threshold pertaining to the number of convictions, cautions, warnings, and reprimands defined as minor should be applied. In the first instance, this should be set at 1 (one). This would allow individuals to be given 'a second chance' where a conviction is defined as minor and it meets the time definition for filtering."

That procedure, if nothing else, will change (and although the Home Office mentions their right to Appeal, I doubt they'll resist making some adjustment to the procedure).

Whether an offence is listed in the Police National Computer (PNC) or not depends on a) whether it is capable of carrying a custodial sentence, b) is listed in the National Police Records (Recordable Offences) (Amendment) Regulations, or c) is listed in the Police and Criminal Evidence Act 1984 (PACE) Code D. Section 5 of the Regulation of Railways Act is included. None of those are affected by this week's decision.

 

[Busaholic]

Isn't it amazing? We live in a country where the rich and famous/infamous, or merely influential, can get their past misdeeds including ones deemed criminal wiped from searches of the internet, even including people who had been appointed to hold others accountable but couldn't resist dipping into the pot
themselves, yet we stigmatise petty infractions for life by others in the lower stratas of society (generally) and prevent them from gaining employment.

That is why I get so annoyed when many on this forum think joining a train without buying a ticket should be a hanging offence, whereas Devon and Cornwall police, in my area, say they will not deal with any reported cases of people driving their cars from filling stations without paying for the petrol, as they regard it as a 'civil' matter! In a fairer society where the real and repeated transgressors got what many of us would consider their just desserts then perhaps it would matter whether a person who once stole a 99p book should have it wiped from the slate.

Just to end on a personal note, as a bookseller for the last 28 years, the only occasion when I reported a theft to the police, of a schoolboy in uniform who stood reading a book in my shop, waited until I went to lunch, then blatantly walked out with it in front of my middle-aged female assistant, was not taken seriously by the police who refused to take details, even though it was a local school uniform and I could have identified the culprit. Criminal justice in this country is a lottery and, with the book theme in mind, I'd class it as fiction.

 

[DarloRich]

Isn't it amazing? We live in a country where the rich and famous/infamous, or merely influential, can get their past misdeeds including ones deemed criminal wiped from searches of the internet, even including people who had been appointed to hold others accountable but couldn't resist dipping into the pot
themselves, yet we stigmatise petty infractions for life by others in the lower stratas of society (generally) and prevent them from gaining employment.

That is why I get so annoyed when many on this forum think joining a train without buying a ticket should be a hanging offence, whereas Devon and Cornwall police, in my area, say they will not deal with any reported cases of people driving their cars from filling stations without paying for the petrol, as they regard it as a 'civil' matter! In a fairer society where the real and repeated transgressors got what many of us would consider their just desserts then perhaps it would matter whether a person who once stole a 99p book should have it wiped from the slate.

Just to end on a personal note, as a bookseller for the last 28 years, the only occasion when I reported a theft to the police, of a schoolboy in uniform who stood reading a book in my shop, waited until I went to lunch, then blatantly walked out with it in front of my middle-aged female assistant, was not taken seriously by the police who refused to take details, even though it was a local school uniform and I could have identified the culprit. Criminal justice in this country is a lottery and, with the book theme in mind, I'd class it as fiction.

Any chance you could read the legion sensible posts made by DaveNewcastle on this and similar subjects?

He has more patience than I have in trying to educate.

 

[Busaholic]

Any chance you could read the legion sensible posts made by DaveNewcastle on this and similar subjects?

He has more patience than I have in trying to educate.

I might just add that, prior to becoming a bookseller, I was a Senior Probation Officer with Kent Probation and Aftercare Service, so I am only too aware of the effect of criminalising people for what may be carelessness or a temporary aberration. I spent several years in training covering all aspects of the criminal justice system before my qualification so, please inform me, other than my experience being out of date, where,and on what, I need to be 'educated'?

 

[DarloRich]

I might just add that, prior to becoming a bookseller, I was a Senior Probation Officer with Kent Probation and Aftercare Service, so I am only too aware of the effect of criminalising people for what may be carelessness or a temporary aberration. I spent several years in training covering all aspects of the criminal justice system before my qualification so, please inform me, other than my experience being out of date, where,and on what, I need to be 'educated'?

my apologies - having my usual rant about ill informed comment on the legal system.

 

[radamfi]

You don't even need to be convicted to be treated like you have a conviction:

http://www.bbc.co.uk/news/uk-england-york-north-yorkshire-35385227

 

[DarloRich]

Interesting! From this publication: https://www.gov.uk/government/uploa...2015-07-03_FINAL_Guidance_Part_2_SOA_2003.pdf

Sexual Risk Orders: A Sexual Risk Order (SRO) can be made by a court in respect of an individual who has done an act of a sexual nature and who, as a result, poses a risk of harm to the public in the UK or children or vulnerable adults abroad. For a SRO to be imposed, the individual does not need to have committed a relevant (or any) offence.
An SRO may impose any restriction the court deems necessary for the purposes of protecting the public from harm (this includes harm from the defendant outside the United Kingdom where those to be protected are children and vulnerable adults), and requires the individual to notify the police of their name and address, including where this information changes.
An SRO is
available on free-standing application to a magistrates’ court by the police or National Crime Agency

and from pages 42 onwards

There must be significant information that has not been reported and perhaps can not be reported although the inference to be drawn from the documentation seems clear if somewhat alarming for civil liberties!

 

[DaveNewcastle]

. . . . somewhat alarming for civil liberties!

Alarming for those who are the offenders?
. . . or alarming for those who are the victims or are at risk?
. . . or alarming for uninvolved commentators?

There are several very serious crimes by individuals involving sexual violations whose prosecution are being frustrated by procedural hurdles and an acute lack of resources, and there are several instances of persons allegedly committing serious sexual offences who are not being notified as a risk to employers or voluntary agencies.

While either of those positions leave us as a society worryingly vulnerable, the third position places the commentator on abuse, alleged abuse, and often convicted abuse, in a position of silence.

Thankfully, the crisis that these incidents are highlighting have not been unnoticed. Most notably, the Lord Chief Justice of England, John Thomas, has not hesitated to criticise the performance of the Police and CPS recently, in their failures and inefficiencies in prosecuting serious crimes involving sexual abuses.

There is a serious problem which has increasingly higher risks for us as a society, as resources continue to be cut affecting investigation and prosecution, and equally, resources are cut affecting the defence of the innocent and the protection of the vulnerable, and thirdly, that resources are cut (or never existed) affecting the publicity of serious risks.

I hope you agree that the latter should be as worrying as the other two. Publicising crime has historicaly been as much a puclic sector as a private sector function. Both are experiencing acute shifts in their funding, structure and accountability.

 

[DarloRich]

Alarming for those who are the offenders?
. . . or alarming for those who are the victims or are at risk?
. . . or alarming for uninvolved commentators?

But surely any debate on a matter impacting upon civil liberties turns on those points, although whilst trying to be liberal one must also protect the vulnerable. While this order seems perfectly justifiable considering the nature of the crimes involved the extension of the principle to other areas would worry me

There are several very serious crimes by individuals involving sexual violations whose prosecution are being frustrated by procedural hurdles and an acute lack of resources, and there are several instances of persons allegedly committing serious sexual offences who are not being notified as a risk to employers or voluntary agencies.

While either of those positions leave us as a society worryingly vulnerable, the third position places the commentator on abuse, alleged abuse, and often convicted abuse, in a position of silence.

Thankfully, the crisis that these incidents are highlighting have not been unnoticed. Most notably, the Lord Chief Justice of England, John Thomas, has not hesitated to criticise the performance of the Police and CPS recently, in their failures and inefficiencies in prosecuting serious crimes involving sexual abuses.

There is a serious problem which has increasingly higher risks for us as a society, as resources continue to be cut affecting investigation and prosecution, and equally, resources are cut affecting the defence of the innocent and the protection of the vulnerable, and thirdly, that resources are cut (or never existed) affecting the publicity of serious risks.

I hope you agree that the latter should be as worrying as the other two. Publicising crime has historicaly been as much a puclic sector as a private sector function. Both are experiencing acute shifts in their funding, structure and accountability.

Agreed - I am extremely concerned by the reductions in funding available in the fields of the administration and operation of the justice system at all levels.

 

[radamfi]

There are several very serious crimes by individuals involving sexual violations whose prosecution are being frustrated by procedural hurdles and an acute lack of resources

Surely it is best to sort that out instead of trying to convict someone by the back door? If seems that if you aren't convicted then you can have your life ruined anyway.