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Court of Appeal finds criminal record disclosure regime unlawful

R (on the application of P and Others) v Secretary of State for the Home Department [2017] EWCA Civ 321

In a landmark Court of Appeal ruling, the Government lost its appeal to a decision of the High Court in January last year, which ruled that the criminal records disclosure scheme was disproportionate and unlawful.

Details

The Court of Appeal heard appeals relating to four linked cases, including cases brought by Liberty and Hodge, Jones & Allen supported by Just for Kids Law.

The court ruled that the disclosure scheme has insufficient safeguards to be lawful, and that the scheme is disproportionate. In one case, a man was convicted in the 1980’s of ABH when he was 16-years-old and received a conditional discharge. The President of the Queen’s Bench Division, Sir Brian Leveson, said in his judgment:

“It is difficult to see how publication of this detail, 31 years on, is relevant to the risk of the public, or proportionate and necessary in a democratic society.”

The government has previously recognised that old and minor convictions should not be automatically disclosed to employers, and introduced the filtering rules, which mean certain convictions are not disclosed after a period of time if the person has a single conviction.

However this still means that convictions for many offences will never be filtered, regardless of how long ago it was, the sentence they received, how old the person was at the time of the offence and the circumstances or facts of the offence. And those people who have more than one conviction, regardless of any factors will never have their convictions filtered and those convictions (and cautions for some offences) will be disclosed in all criminal record checks (DBS checks) until they reach 100.

Just for Kids Law argued that, in particular, age was a crucial factor and that criminal offences received as children should be treated differently.  The Court of Appeal has now ruled that the current filtering system is unlawful. It is anticipated that the Government will seek to appeal to the Supreme Court.

 

Jennifer Twite, Head of Youth Justice Strategic Litigation at Just for Kids Law commenting on the judgment said:

“The current regime means that criminal offences committed as children are often disclosed automatically to employers for the rest of that person’s life.  This includes youth cautions (previously called reprimands or final warning) and there is no appeal mechanism. The Court of Appeal has today found that this disclosure regime is not proportionate, and does not balance the right of an individual to put their past behind them with the requirements of a society to make sure the public are kept safe from those who might remain a risk.

Just for Kids Law welcomes a more balanced approach to disclosure, to allow for those who committed offences a long time ago, especially when they were children, can properly leave their pasts behind them when it is clear that they are no longer a risk.”

 

Christopher Stacey, Co-director of Unlock, a leading charity for people with convictions that supported the legal challenge and who attended the hearing in the Court of Appeal, said:

“Thousands of people contact us every year because they are being unnecessarily anchored to their past as a result of a criminal record disclosure system and DBS filtering process which is blunt, restrictive and disproportionate.

“We’re delighted with the Court of Appeal’s ruling in this important case, which stands to affect many thousands of people with old or minor criminal records. Over 240,000 DBS checks every year disclose convictions or cautions. Since the filtering scheme was introduced in 2013, it’s helped some people with old and minor records to be free of the stigma and discrimination that so many face when they have something they have to disclose to an employer. However, the current system doesn’t go far enough. It operates with inflexible rules meaning that, for example, someone with more than one conviction on their record will have to disclose all of their convictions indefinitely, regardless of the nature or circumstances of the conviction or the length of time that has since passed. The system acts as an additional sentence that often runs for life. It desperately needs reform. These shortcomings have today been recognised by the Court of Appeal.”

Debaleena Dasgupta, Legal Officer at Liberty and solicitor for P, said:

“This important ruling gives hope to huge numbers of people whose ambitions have been dashed because of minor mistakes they made in the past.

“The Government must urgently fix this broken system that needlessly prevents people from rebuilding their lives and contributing to society. We look forward to seeing a fairer scheme which has the capacity to consider individual circumstances where appropriate.”