Enhanced criminal records checks 'breach human rights'
Supreme Court may have final say as government appeals
Enhanced criminal records checks, which enable the police to give details of cautions and warnings to potential employers, breach human rights, the Court of Appeal ruled today.
One of the cases involved a warning given to 'T' when he was a boy, aged 11, over two stolen bicycles. Another involved an adult, 'JB', who was cautioned for shoplifting.
Appeal judges ruled in a third case, involving a woman's conviction as a teenager for her part in a violent car-jacking, that the offence was so serious that it could not be regarded as 'spent'.
Delivering the judgment of the court in R(on the application of T), R(on the application of JB) and R(on the application of AW) [2013] EWCA Civ 25, Lord Dyson, Master of the Rolls, said the court was willing to direct that its decision should not take effect until the matter was heard by the Supreme Court. The government has announced its intention to appeal.
Lord Dyson said the three judicial reviews challenged parts of the Rehabilitation of Offenders Act 1974 (ROA), the ROA (Exceptions) Order 1975 and the Police Act 1997, on the grounds that they were incompatible with article 8 of the ECHR.
The court heard that under Section 113B of the Police Act, enhanced criminal record certificates could be issued which could include any information a chief police officer considered might be relevant.
T enrolled on a university sports studies course and, because it involved contact with children, the university obtained an enhanced criminal records check, revealing the warnings issued by the police when he was a boy.
JB, who is unemployed, attempted to get a job in the care sector after attending a training course, but her job centre told her she was unsuitable for work with vulnerable people after a criminal records check revealed her caution for shoplifting.
AW wanted to get a job in the army. Her conviction for manslaughter when she was 16 will never be 'spent' under existing rules because it resulted in a sentence of five years in detention.
Allowing T's appeal, Lord Dyson said: 'It is not for the court to prescribe the solution that should be adopted.
'T is, however, entitled to a declaration of incompatibility in relation to the disclosure provisions of the 1997 Act and a declaration that the ROA Order is ultra vires the 1974 Act because that Act does not permit the making of regulations that breach article 8.'
The Master of the Rolls also allowed JB's appeal.
'Save for the fact that JB was an adult at the time of her offending, all the arguments deployed on behalf of T in relation to the disclosure provisions of the 1997 Act would seem to apply with equal force to her case.
'Her offence was of a trivial nature committed some eight years before she applied for a post working with vulnerable people.'
However, AW's appeal was dismissed, on the grounds that parliament was 'entitled to take the view that some offences are so serious that they should never be regarded as 'spent'.'
Lord Justices Richards and Davis contributed to the judgment.