Disclosing Criminal Records – a question of proportionality!

Revealing criminal records is not always proportionate and fair – a ruling by the Supreme Court

Background:

You may recall our article ‘A sentence for life?’ back in August 2018, which reported on the Supreme Court’s judgement regarding a teacher who was acquitted of a serious offence. In that case it was determined that such information was deemed proportionate or ‘a matter of public record’ to be included on an enhanced DBS check.

The decision at the time was labelled by commentators as being effectively ‘a label for life’ for such individuals, which would tarnish and hinder their future opportunities forever.

However, following a landmark case brought by Liberty  and others to the Supreme Court, a  contrasting decision has since ruled in favour of new individuals ( the ‘Respondents’) who claimed that the disclosure of their criminal records, had also ruined their opportunities for employment.

The Judgement:

The court’s decision ruled that in the majority of the Respondents circumstances, there was a partial breach of the proportionality test applied above. Lord Sumption, who found in favour of most of the individuals cases, noted that it should be considered disproportionate to state that ‘all previous convictions must be disclosed, no matter how minor’ and especially ‘in cases where warnings or cautions were issued to young offenders’.

This is at odds with the current criminal records disclosure scheme which requires individuals with multiple convictions, no matter how minor, to declare them for the rest of their lives when applying for certain jobs (e.g. when working with youths).

The court’s decision went onto confirm that whilst the current scheme’s purpose did not necessarily intervene with Article 8 of the European Court of Human Rights (ECHR), it could not always be deemed necessary or fair for certain cases within a ‘democratic society’.

One of the successful Respondents convictions included ‘theft of a 99p book while suffering from undiagnosed schizophrenia’ and ‘failing to answer her bail’.

Although the majority of the individuals were successful, it was not considered disproportionate for one who had been convicted for assault, as this was determined to be ‘a serious offence and thus appropriate to be included within the category of offences requiring disclosure’.

Why does this Judgement differ to the court’s previous decision?

If you are left wondering why this decision differed to that of the teacher as reported by us in July 2018, the reason was because of the seriousness of the offence that he was acquitted for. Like the Respondent above who was convicted for assault, serious offences fall into a category which would be proportionate for full disclosure.

What’s happens now?

This is an important ruling which will go a step towards changing the current criminal disclosure scheme. Whilst we wait for the Government’s full response, the judgement certainly provides for a positive step towards ensuring children who are given a caution do not end up with a criminal record that can label them for life.

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