Liberty challenges 'disproportionate' criminal records disclosure

By agency reporter
December 8, 2015

The civil liberties and human rights organisation Liberty will today (8 December) launch a legal challenge to the Government’s criminal records disclosure scheme, which forces people with more than one conviction to divulge them forever when applying for certain types of work – regardless of individual circumstances or the minor nature of the offences.

Liberty’s client – referred to in this case as P – committed two extremely minor offences in 1999 while suffering from a then undiagnosed mental illness. 

P has committed no crimes since and – more than 16 years later – is seeking voluntary positions in schools with a view to achieving her aim of working as a teaching assistant. 

However, under current rules, she is forced to disclose her two convictions when applying and – in explaining the circumstances of the offences – to reveal details of her medical history.

In a hearing before the High Court today, Liberty will argue that this represents a breach of P’s rights under Article 8 of the Human Rights Act – the right to a private and family life. 

Liberty will also argue that the system is too arbitrary and disproportionate, and requires urgent reform to allow for greater consideration of individual circumstances.

In August 1999, P was charged with shoplifting a 99p book. She was bailed to appear before a Magistrates’ Court 18 days later, but failed to attend and was therefore convicted of a second offence under the Bail Act 1976. 

In November 1990, she was given a conditional discharge in respect of both offences.

P’s two convictions relate to a very specific and short period of her life, and she has no subsequent criminal history of any kind. At the time, she had untreated schizophrenia – a condition which was later diagnosed and treated.

P now wishes to work as a teaching assistant and has sought voluntary positions in schools. However with each application she is required to disclose her two convictions, which has the effect of leading to the disclosure of her medical history.

The Police Act 1997 created the Disclosure and Barring Service (DBS – formerly the Criminal Records Bureau), which provides details of a job applicant’s previous convictions. For certain types of work, particularly work with children or vulnerable adults, the standard or enhanced certificates issued by the DBS used to list all the job applicant’s previous convictions.

However, in 2013, the Government amended this scheme following a Court of Appeal ruling to introduce a 'filtering' process. Single convictions for non-violent, non-sexual offences that did not lead to a suspended or custodial sentence will be 'filtered' (i.e. not disclosed) after 11 years (five-and-a-half years if the person was under 18 at the time of the offence).  

The new filtering process does not apply if a person has more than one conviction – regardless of the minor nature of the offences or the person’s circumstances at the time.

The Rehabilitation of Offenders Act 1974, which governs the circumstances in which a person has to admit to a previous conviction if asked, operates in a similar way.  A person applying to work with children or vulnerable adults does not have to disclose a conviction which is 'filtered'. 

James Welch, Legal Director for Liberty, said: “Too many people find their work prospects blighted because of minor offences committed in their distant pasts. 

“The Government accepted the logic of letting people move on when it introduced filtering two years ago. But, in restricting this to those with only one conviction, it has created a scheme which is deeply unfair to people like my client, with two very minor – and, in this case, connected – convictions.  

“We need a system that’s flexible enough to consider individual circumstances – and we hope the High Court will agree that the DBS scheme still needs reform.”

Christopher Stacey, Co-Director of Unlock, a charity for people with criminal records, said: “Since the filtering scheme was introduced in 2013, we know it’s helped many people with old and minor criminal records to be free of the stigma and discrimination that so many face when they have something on their criminal record.

"However, it simply doesn’t go far enough. We’ve had thousands of people contact us who continue to have old and minor records disclosed to employers when they have no relevance to the role they’re applying for. That’s why we’re supporting this legal challenge. The current system is blunt, too restrictive and disproportionate." 

P’s case will be heard alongside that of another claimant, A, who was convicted of two minor crimes in 1981 and 1982 when aged 17 and 18. He has since worked as an accountant, company finance director and now project manager – work that often requires due diligence and criminal record checks – and is concerned that he may be forced to disclose his convictions.

* Liberty https://www.liberty-human-rights.org.uk/

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