Criminal records checks are unlawful - now what?
The DBS story
The Disclosure and Barring Service (DBS) was first introduced in England and Wales in 2012 when the Criminal Records Bureau and the Independent Safeguarding Authority were amalgamated. Scotland and Northern Ireland run similar but separate schemes. Employers are legally required to request a criminal records check from the DBS when employing people for certain types of work, particularly if it involves working with children or vulnerable adults.
Previous ruling
In 2013 the government was forced to amend the DBS and introduce a filtering system. This was due to a ruling made by the Court of Appeal in R (on the application of T) v Chief Constable of Greater Manchester 2013 . We reported on this case in February 2013 ( yr.15, iss.5, pg.7 , see The next step ).
Note. The filtering system is not triggered where a person has more than one criminal conviction. This is regardless of the nature of the offences (which could be quite minor) or the person’s circumstances at the time.
A fresh legal challenge
It’s this factor that’s given rise to a fresh legal challenge in R (P and A) v Secretary of State for Justice 2016 (see The next step ). The case involved two people who have historic convictions. P, who now wishes to work as a teaching assistant, was charged with shoplifting a 99p book in 1999 and later failed to attend court. This meant she ended up with two convictions. A, who holds a senior position, was convicted of two minor thefts in 1981 and 1982 when he was aged 17 and 18.
Breach of human rights
P claimed that her convictions prevent her from securing work whereas A argued that, due to the nature of his work (which sometimes requires criminal records checks), his family might learn of and think negatively about a past life that he really wishes to forget. They both argued that had they only had one minor conviction this wouldn’t be an issue and the filtering system was, therefore, a breach of their human right to privacy.
High Court decision
The High Court sided with P and A, giving a preliminary ruling that the DBS is both unlawful and arbitrary. This is because it is neither justifiable nor necessary for any individual to have minor criminal offences disclosed indefinitely, particularly those from many years ago, merely because there are more than one.
What happens now?
The High Court wants the government to make submissions on how it intends to remedy the faults in the system before it makes its final order. This must happen urgently even though the government has indicated it intends to appeal.
Tip. In the meantime the DBS will continue to operate unchanged - so use it as normal until we advise otherwise. Once the changes are known we will report further.
For a previous article on the DBS and for the High Court’s ruling in this case, visit http://tipsandadvice-personnel.co.uk/download (PS 18.04.07).
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