The Supreme Court ruled last week
that the former system of CRB checks breached human rights to privacy,
upholding an earlier ruling by the Court of Appeal.
Background
The factual background to the
case, and an explanation of the Court of Appeal’s judgment, can be found in
this earlier article. I will not repeat them here.
In short, the case centred on CRB
checks, which are obtained by prospective employers to check whether
prospective employees have convictions or other history making them unsuitable
for employment. The particular issue for the Supreme Court was whether enhanced
CRB checks – which disclose all previous convictions and cautions irrespective
of how long ago they were acquired, their triviality, or their relevance to the
proposed employment – were an unjustified interference with an individual’s
right to a private life, as guaranteed by Article 8 of the
European Convention on Human Rights (ECHR). Enhanced CRB checks are often
obtained for roles requiring work with children or vulnerable adults.
Article 8
In the present case the claimants
(those bringing the claim) argued that disclosing the information contained in
enhanced CRB checks to prospective employers breached their right to privacy,
as protected by Article 8 of the ECHR. Article 8 guarantees an individual a
right to privacy. However, that right is not absolute. The right can be
interfered with if it is necessary to achieve certain aims, such as the
protection of the rights of others, and where interferences are clearly defined
in law. The Government contended that the law permitting enhanced CRB checks protected
the rights of others, namely the rights of children and the vulnerable, and
were therefore justifiable interferences with the right to privacy
These arguments required the
Supreme Court to determine three issues:
1) Did enhanced CRB checks interfere
with the claimants’ right to privacy?
2) If so, were those interferences
in accordance with the law?
3) If they were in accordance with
the law, were they necessary?
I will discuss each of the issues
in turn.
Interference
The first issue for the court was
whether enhanced CRB checks actually interfered with claimants’ right to
privacy. The Supreme Court noted the right to privacy includes a right to form
relationships with other human beings and that excluding individuals from
employment would be likely to affect the formation of relationships. Since CRB
checks could result in a person being excluded from employment (and from
forming relationships), it followed that releasing data about an individual’s
convictions would interfere with their private life.
In Accordance with the Law
Since the CRB checks interfered
with the private lives of the claimants, the second issue was whether the
interference was in accordance with the law. This entails that the law must be
adequately accessible and foreseeable. The majority of the Supreme Court also held that this meant the law should not
subject an individual to arbitrary interference. It concluded that the law on CRB checks did not guard against arbitrary
interference because it drew no distinction between the types of offences a
person had committed, how long ago they were committed, the sentence received
or the relevance of the offences to the proposed employment; it simply allowed
the disclosure of all previous offending in an arbitrary manner. Since the law permitted arbitrary interference, the interferences were not in
accordance with the law.
Accordingly, since the
interferences were not in accordance with the law, they amounted to a breach of
article 8: the claimants’ private lives were interfered with in an unlawful
way.
Necessary in a Democratic Society
Although the court concluded the
law on enhanced CRB checks was unlawful because it was not in accordance with
the law, it nevertheless went on to determine whether the interference would
have been justified as being necessary in a democratic society. This issue is a
question of proportionality, which in law is a three-part test. Firstly it is
asked if the disputed law pursued a legitimate aim; secondly, it asks if the
disputed law was rationally connected to the aim; finally, it asks whether the
disputed law was any more that was necessary to achieve the aim. The court held that although the law aimed to protect the vulnerable, it was not
rationally connected to that aim because it permitted the disclosure of totally
irrelevant convictions. Therefore the law was not proportionate.
Overall then, the law on enhanced
CRB checks interfered with the claimants’ right to privacy and was unjustified;
article 8 had been breached. The Supreme Court’s judgment can be read here.
Comment
This is an unsurprising decision.
However, it is curious that the Government decided to appeal the Court of
Appeal’s judgment. Shortly after the Court of Appeal handed down its judgment,
as I explained in this article, the Government changed the law on CRB checks to filter old and irrelevant
convictions from CRB checks in order to ensure the law complied with article 8.
The Government spent vast sums of money appealing a decision even though it was
prepared to follow the decision and change the law to make it complaint with
article 8. That is not a commendable use of public funds.
What are your thoughts?
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