CRB Checks to be Relaxed

The Home Office has today announced plans to relax CRB checks. Thousands of job applicants will consequently no longer have their criminal past disclosed to employers.

The announcement follows a Court of Appeal ruling in January that blanket checks for certain positions did not comply with human rights laws. It was initially thought that the government would appeal the ruling.

Criminal record checks are carried out on new employees for certain positions by the Disclosure and Barring Service (DBS), previously known as the Criminal Records Bureau. For particular positions, such as those involving work with children and vulnerable adults, all of an individual’s previous convictions must always be declared, even if they are very old, very minor and irrelevant to the individual’s new job.

It was this part of the law that the Court of Appeal found incompatible with human rights. It held that the checks were incompatible with an individual’s right to a private life under Article 8 of the European Convention on Human Rights. For the original article on the Court of Appeal ruling, see here.

Under the proposed legislation, convictions resulting in a non-custodial sentence will be filtered from CRB checks after 11 years for adults. For young offenders the period will be five and a half years. Cautions will be filtered from CRB checks after 6 years for adults and 2 years for young offenders.

However, serious violent and sexual offences and those offences resulting in a custodial sentence will always be disclosed as part of a criminal record check. A previous conviction will also not be filtered if an individual has other previous convictions.

The new system is expected to be implemented within weeks.

The Home Office article on the new changes can be read here.

The Law and CRB Checks

The Rehabilitation of Offenders Act 1974 (and other laws) creates a system which allows an individual to treat certain convictions and warnings as ‘spent’. That is to say after a certain amount of time an individual can treat themselves as having never committed an offence. They do not need to tell most employers about their offending and cannot be refused employment because of it. A ‘standard CRB check’ would not show spent convictions.

However, for certain positions, many of which involve working with children and vulnerable adults, the law requires all previous offences and warnings to be declared. For these positions a conviction never becomes spent. An ‘enhanced CRB check’ would show all previous convictions, cautions and warnings. It was this part of the law that the Court of Appeal found incompatible with human rights. When the new law is in force, certain convictions and cautions will be filtered from all CRB checks (including enhanced checks), as detailed above, so that the concerns raised by the Court of Appeal are answered.

CRB Checks: Balancing Human Rights

This week the Court of Appeal has ruled that laws requiring people to disclose all previous convictions to certain employers are incompatible with human rights.

The case centred on an individual known as T. When he applied to study a sports course at university (which involved working with children) he was required to disclose police warnings he received aged 11 over two stolen bicycles. He contended that the system of criminal record checks (commonly known as CRB checks) which requires a person to disclose all convictions and warnings to certain employers, irrespective of the age of the warnings or convictions, was incompatible with his right to a private life under Article 8 of the European Convention on Human Rights (ECHR).

The Court of Appeal agreed. While it accepted that the system is designed to protect employers and the children and vulnerable adults in their care, it held that the need to disclose all convictions and warnings was disproportionate to that aim. The blanket nature of the system was wider than necessary to achieve the purpose of protecting children and vulnerable adults. The court said the fundamental objection to the system was that it does not seek to control the disclosure of information according to whether it is relevant to allowing employers to assess if an individual is suitable to be employed. The court has therefore ruled that the relevant legislation is incompatible with human rights. As expected, the government has said it intends to appeal the decision.

Notes on the law

This case shows a classic issue within human rights law; namely, the need to balance competing rights.

The Rehabilitation of Offenders Act 1974 (and other laws) creates a system which allows an individual to treat certain convictions and warnings as ‘spent’. That is to say after a certain amount of time an individual can treat themselves as having never committed an offence. They do not need to tell most employers about their offending and cannot be refused employment because of it. However, for certain positions, many of which involve working with children and vulnerable adults, the law requires all previous offences and warnings to be declared. It was this part of the system that affected T.

Article 8 of the ECHR provides that we all have a right to a private life. In the case of T the court accepted that CRB checks interfered with this right as the cautions were issued in private. More generally, the court accepted CRB checks can interfere with the right to a private life because it can lead to exclusion from employment, where individuals form relations with others. Article 8 does, however, allow interferences with our private life if it is necessary to achieve certain aims. In other words, interferences with the right to a private life can be justified if they are proportionate to certain aims. One of those aims is the protection of the rights of others. So in the case of T, CRB checks were intended to protect the rights of children and vulnerable adults, which the court accepted. However, the court could not accept that it was necessary to require the disclosure of all previous convictions and warnings. The court said it simply was not necessary to disclose all convictions and warnings when some are so old and minor that they are totally irrelevant. This stepped too far into T’s right to a private life.

The court was required to examine the balance between one person’s right to a private life and the need to protect the rights of others. It decided here that the balance struck by the current law was wrong.

The future of CRB checks

Assuming that the judgment is not reversed on appeal, the law will need to be amended. The court suggests that in the future a filter system can be used to exclude certain convictions and warnings from CRB checks based on the age of the conviction/warning, the age of the individual at the time of the conviction/warning, the severity of the offence etc. The court said it would not be appropriate to allow the current system to continue and require employers to determine if a previous conviction/warning is relevant to an individual’s suitability for employment because often a previous conviction/warning would be a ‘killer blow’ to an individual’s employment prospects. This must surely be correct; the court is quite right to fear that employers would simply choose individuals without previous convictions/warnings.

It will be very interesting to see the outcome of any appeal and how the current system might be changed. What are your thoughts? Should all convictions and warnings continue to need to be disclosed when applying for certain jobs?

The judgement can be read in full here: http://www.bailii.org/ew/cases/EWCA/Civ/2013/25.html