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Court of Appeal tells UK government that Criminal Records Bureau checks system breaches human rights
Yesterday the Court of Appeal delivered its judgment in the case of R (on the application of T) v Chief Constable of Greater Manchester & Others concerning the operation of the criminal records check system. The court was considering three cases that hinged on the same question: whether or not the blanket requirement on those applying for jobs involving contact with children and vulnerable adults (approximately four million people each year) to disclose all past convictions, cautions and warnings was an infringement of their Article 8 right to private and family life.
In his judgment, Lord Dyson, Master of the Rolls, found that the current system of Criminal Records Bureau (CRB) checks did indeed constitute a breach of Article 8 of the Human Rights Act and the European Convention of Human Rights. The fundamental objection of the Court was the failure of the current system “to control the disclosure of information by reference to whether it is relevant to the purpose of enabling employers to assess the suitability of an individual for a particular kind of work”. The factors determining relevance, as defined by the court, include the seriousness of the offence, the sentence imposed or other manner of disposal, the time elapsed since the offence, the age of the offender at the time of commission, whether the individual has re-offended, and the nature of the work the individual is applying for. These factors must also be considered when attempting to strike a balance between the relevance of the information and the severity of the impact it may have on the individual’s Article 8(1) rights.
Criminal Background Checks are a contentious issue and the court considered in detail the various rights and responsibilities that must be balanced. Counsel for the government argued that the CRB checks are designed to ensure the safety of children and vulnerable adults by preventing former offenders from gaining access to them through employment, and that the system also provides a layer of legal protection for employers. While the court certainly agreed that these were valid principles, it was of the belief that the current CRB scheme was not proportionate:
We accept that the interference with T's article 8 rights pursues both (i) the general aim of protecting employers and, in particular, children and vulnerable adults who are in their care and (ii) the particular aim of enabling employers to make an assessment as to whether an individual is suitable for a particular kind of work. But in our judgment, the statutory regime requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate to that legitimate aim."
Despite the government’s objections to the Court making a decision on this matter given that it is currently being considered by Parliament, the Court of Appeal called on Parliament to come up with a proportionate scheme. The Court claimed that in this case, it could not rely upon Parliament to take action to find a solution in a sufficiently timely manner. The publication of this decision was delayed from December to allow the Home Office time to mitigate the damage to the CRB system this judgment would cause. The government has been given 28 days to appeal the case to the Supreme Court before the ruling takes effect, something they are certain to do.
The wide scope of criminal background checks is not a new concern. On 22nd October 2010, the Home Secretary established a Criminal Records Review. The Review's final report recommended the development of a filtering system that would remove minor convictions from the information delivered in these checks. The problem was that there is no legal definition of a ‘minor’ offence. An Independent Advisory Panel for the Disclosure of Criminal Records failed to agree on how to create this kind of filter. A primary concern was the sheer volume of resources required to carry out any kind of filtering. Cases would require individual consideration and as such, it was considered to be highly impractical.
The government also argued that the decision has been left to employers to assess the relevance of criminal record information, so disclosure does not automatically lead to detriment. Whilst theoretically true, this places a great onus on the employers and is based on the assumption that they are both qualified and willing to make a judgment regarding an applicant’s criminal history. It is far more likely that they simply discount individuals based on their criminal history.
So the question remains: how do you balance the rights of the individual with the goal of protecting the vulnerable members of society? The Court may have taken the first step in requiring Parliament to develop a ‘proportionate system’ for CRB checks, but they can give no guidance as to the mechanics of doing so. A restructuring is undoubtedly necessary; but what exactly a proportionate system looks like remains unclear.