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May 26 2016

Criminal Records Checks "Arbitrary" and Unlawful

The High Court has upheld a challenge by way of judicial review to the criminal records disclosure scheme used in England and Wales. It has found the scheme to be "arbitrary" and disproportionate, and it was ruled unlawful, as incompatible with Article 8 of the European Convention on Human Rights.
Under the Rehabilitation of Offenders Act 1974, convictions, cautions, reprimands and warnings become "spent" after a certain period of time. However, in certain "excepted positions" (principally those working with children or vulnerable adults) the general rule does not apply and all prior convictions must be disclosed, however old or trivial, where there has been more than one previous conviction.
The focus of the challenge was on this exception. Employers should take preparatory steps in anticipation of the changes to the law.