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January 22 2019

The way workers’ criminal records are disclosed to employers infringes their human rights

The way workers’ criminal records are disclosed to employers infringes their human rights, the Supreme Court has ruled.  In particular, the court rejected as “disproportionate” the blanket rules requiring automatic disclosure of all convictions where a person has more than one, and the requirement that some childhood cautions be disclosed indefinitely.

Experts have said the ruling could affect thousands of people who have old or minor criminal records.  The landmark judgment upholds previous rulings by the High Court (2016) and the Court of Appeal (2017) that the Disclosure and Barring Service (DBS) scheme was “not in accordance with the law”, since it breached the right to a private life, stipulated by article 8 of the European Convention on Human Rights.

Judges rejected government appeals over three cases brought against the Home Office in which the claimants argued the DBS system was hindering their rehabilitation.

The cases included of a woman convicted of driving without wearing a seatbelt who was fined £10. Another, named only as P, received a caution for the theft of a sandwich from a shop. In the same year, P was convicted of the theft of a book worth 99p while homeless and suffering from undiagnosed schizophrenia. 

The third case involved an assault that occurred during a fight after school when the individual was 16 years old. He received a conditional discharge, and has not offended since, though believes his career has been blighted by the event.

The court said the rule for disclosing multiple convictions was “capricious”, describing the inclusion of youth warnings and reprimands as part of the disclosure scheme as an “error of principle”.