Supreme Court challenge to 'disproportionate' criminal records disclosure scheme

By agency reporter
June 19, 2018

The Supreme Court will on 19 June 2018 begin to hear a landmark challenge to rules requiring anyone with more than one conviction – no matter how minor – to disclose them forever when applying for certain types of work.

The criminal records disclosure scheme rule means people must disclose multiple convictions for the rest of their lives when applying for certain roles – regardless of the minor nature of the offences, how long ago they were committed and the person’s circumstances at the time.

The claimant in this case – known as 'P' and represented by human rights campaigning organisation Liberty – committed two extremely minor offences, arising out of the same incident, while suffering from a then undiagnosed mental illness in 1999.

P has committed no crimes since and – almost 20 years later – has for many years aimed to work as a teaching assistant. However, the current rules mean she has to reveal her two convictions when applying and, in explaining the circumstances of the offences, is forced to reveal details of her medical history.

Liberty argues that this breaches P’s privacy rights under Article 8 of the Human Rights Act, that the system is arbitrary and disproportionate and that it requires urgent reform.

Two courts have already agreed with P’s arguments. In May 2017, the Court of Appeal agreed with the High Court’s decision a year earlier that the current system breaches people’s right to a private and family life. The Government appealed against the decision, sending the challenge to the UK’s highest court.

The Supreme Court hearing will run from Tuesday 19 to Thursday 21 June 2018. P’s case will be heard alongside three others.

Liberty believes a more flexible system, which considers individual circumstances in cases of old and minor convictions, should be introduced. This should make clear that people would still have to declare any offence which indicates that they might pose a risk of harm in the course of their employment, but would allow those with more than one conviction for less serious offences to move on.

P said: “No one should be left at such a huge disadvantage when applying for work because of very minor mistakes they made nearly two decades ago when they were unwell.

“The current rules are unnecessary, disproportionate and unfair. They have left me and so many others unable to move on with our lives, achieve our aims and contribute to our communities. I hope the Supreme Court will agree with the High Court and Court of Appeal and make the Government take long-overdue action to reform the system.”

Rosie Brighouse, Lawyer for Liberty and P’s solicitor, said:“The criminal records disclosure scheme has twice been ruled unlawful – but instead of putting in place the urgent reform that’s so desperately needed, the Government has chosen to fight this all the way to the Supreme Court..

“All P wants to do is move forward with her life. She is unable to do so because of two extremely minor offences committed nearly 20 years ago. We hope judges will agree that this situation is deeply unfair and disproportionate, and that it’s time for the Government to put things right.”

Christopher Stacey, Co-director of Unlock, a charity for people with convictions, which has intervened in the case, said: “The current system has multiple, harsh consequences and damaging effects on individuals – in particular it deters people from applying for employment, and for those that do apply it brings high levels of stress, anxiety and feelings of shame and stigma. It acts as an additional sentence that often runs for life. It desperately needs reform.

“A fairer, more proportionate and flexible system should be developed that protects the public without unduly harming people’s opportunity to get on in life. We hope that the Supreme Court will reject the Government’s appeal. We stand ready to work with the Government to reform and implement a system that takes a more calibrated and targeted approach towards disclosing criminal records.”

Background

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 1999, 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 an undiagnosed mental health illness which was later treated.

P now wishes to work as a teaching assistant. 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.

* Liberty https://www.libertyhumanrights.org.uk/

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