R (on the application of T and another) (Respondents) v Secretary of State for the Home Department and another (Appellants) is a decision of the Supreme Court concerning the disclosure of convictions.
Criminal record checks (commonly referred to as CRB checks) have been commonplace in some employment sectors for many years and for obviously good reasons. However, over the last few years their use has become much more widespread. According the latest available figures 2,981,958 checks were carried out in 2011 and it is likely that the number has increased in subsequent years (estimated 4 million in 2013). There has also been a great deal of concern expressed about the number of inaccurate records held – since 2003 over 19,500 challenges have been upheld.
Another area of concern is that historic offences might unfairly prejudice jobseekers and thereby undermine the objective of having spent convictions. For example, The Guardian reported the case of an otherwise exemplary A grade student who was prevented from training as a doctor at Imperial College because of a “spent” conviction. Majid Ahmed had served four months’ community service when a minor following a conviction for burglary.
The Home Secretary and the Justice Secretary took the issue to the Supreme Court when it was held by the Court of Appeal that prospective employers did not need to be notified about spent convictions.
Under the Rehabilitation of Offenders Act 1974 if someone is asked about his or her criminal record there is no obligation to disclose spent convictions. Further, an employer must not make any decision prejudicial to the individual with reference to spent convictions. This also applies to cautions, warnings and reprimands (which are treated as spent as soon as they are given).
However there are exceptions to these general rules, particularly with reference to certain types of employment and professions. In these cases enhanced criminal record certificates can be obtained which include disclosure of every “relevant matter” on the Police National Computer, including spent convictions and cautions. Incidentally, there are similar concerns about the accuracy of data held on the PNC. 3509 people have been found to have inaccurate records in the four years to 2012, over the same period, 2918 had the record of the wrong person disclosed in response to a CRB enquiry and 3547 people had the wrong information recorded or passed on by the police at a local level.
In this case the Supreme Court considered “T” to whom two police warnings were issued in 2002 concerning the theft of two bicycles. The warnings were disclosed in 2008 when he applied for a part-time job with a football club and, again, in 2010 when he applied for a place on a sports studies course.
“JB” was 41 when she was issued with a caution in 2001 concerning the theft from a shop of a packet of false fingernails. In 2009, having completed a training course for employment in the care sector, the training organisation told her that it was unable to put her forward for employment when the caution came to light.
The appeal by the Home Secretary and Justice Secretary was unanimously dismissed. The cautions represented an aspect of the individuals’ private lives, respect for which is guaranteed by Article 8 of the European Convention on Human Rights. Disclosure interfered with that right. That interference had the effect of significantly jeopardising the chances of them pursuing their chosen careers.
Convention rights can be interfered with “in accordance with the law”, essentially when there is a counterpoint which justifies the interference. However, in this case, any such interference was not “necessary in a democratic society. As an example Lord Reed pointed to the lack of a rational connection between dishonesty as a child and the question of whether, as an adult, the person might be a threat to the safety of children with whom he comes into contact.
Of course there are alternative protections available in order to avoid the catch-all approach, such as the Sex Offenders’ Register.
The practical consequences of the judgment are that routine checks will (or should) never include any reference to spent convictions. Enhanced checks will not disclose convictions and cautions unless they led to a prison sentence, relate to a listed offence (e.g. violent or sexual crimes) and the individual has no other convictions. Spent convictions will be removed after five and a half years for under 18s and 11 years for over 18s. Cautions will be removed after two years for under 18s and six years for over 18s.