Haunted by your misspent youth – disclosure of criminal records

The position for most jobs in regard to the disclosure of criminal records is covered by the Rehabilitation of Offenders Act 1974, which only requires unspent convictions to be disclosed in response to a question about an individual’s criminal record. However, there are some particular types of jobs that require applicants to be subject to certain checks, which involve the disclosure of all previous criminal convictions. A recent Court of Appeal judgment (T and others v Chief Constable of Greater Manchester and others [2013]) has challenged the current law. The Court ruled that the blanket requirement placed on individuals to disclose all previous convictions for certain roles is a breach of the individual’s human rights.

The main case involved a job applicant known as T who applied for a job which potentially involved working with children. The checks carried out on T revealed police warnings he had received when he was 11 years of age in relation to two stolen bicycles. T was 21 at the time of application and of good character but the disclosure affected his career progression. The Court of Appeal agreed the regime was not justified or proportionate in relation to T’s case and other similar cases.

Before considering the effect this judgment could have, we have summarised the current law as it stands below.

The current law position

As already mentioned, the principal position on the treatment of individuals with criminal records is set out in the Rehabilitation of Offenders Act 1974 (ROA 1974). Subject to certain exceptions, those who have been convicted of a criminal offence but who have not re-offended during a specified period from the date of conviction are considered to be rehabilitated and their convictions become “spent”. Unless one of the exceptions applies (such as the crime being of such a serious nature that it is never “spent”), a person with a spent conviction is allowed to hold themselves out as having a clean record. Until that time, the conviction should be disclosed in response to a question asking for details of a criminal record. However, there are exceptions to this regime – an individual must disclose convictions that they are otherwise entitled to treat as being spent where an individual is applying for an excepted occupation, office or profession. The excepted occupations, offices and professions are defined in the legislation and fall into five broad groups:

• Professions (such as doctors, lawyers, accountants, vets, chemists and opticians).
• Those employed to uphold the law (such as judges and officers of the court, the police, prison officers and traffic wardens).
• Certain regulated occupations (such as, financial services, those in charge of certain types of nursing homes, taxi drivers and firearms dealers).
• Those who work with children, provide care services to vulnerable adults or who provide health services.
• Those whose work means they could pose a risk to national security (such as air traffic controllers and certain Crown employees).

Employers may be familiar with the regime of applying for CRB checks which also require employers to check criminal records of individuals in the excepted occupations, offices and professions, although it should be noted that in December 2012 the Criminal Records Bureau and Independent Safeguarding Authority were merged to form the Disclosure and Barring Service. All CRB checks are now known as DBS checks.

Watch this space…

As yet, the judgment in this case has no effect on current law as the Government is seeking leave to appeal the judgment in the Supreme Court. Should the appeal not be granted or be unsuccessful, the Government may have to think about possible ways to make the system more proportionate when it comes to minor offences and will need to implement any legislative changes quickly.

The Court of Appeal specifically rejected the notion that it is down to employers to assess the relevance of a disclosure about criminal records by taking into account matters such as the seriousness of the offence, the age of the offender at the time and the lapse of time since it was committed. Therefore, the current regime could be changed in the next few years and is one to keep an eye on.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.