Supreme Court rules on criminal records and disclosure and barring

By Christopher Stevens  |  12.02.2019

A landmark ruling at the Supreme Court on 30th January 2019 rejected an appeal by the government in respect of its criminal records scheme. The judgment confirmed that the current disclosure system for those with minor criminal convictions and cautions infringed human rights.

The impact of the judgment will affect many people who have criminal records from their distant past which have created a harsh barrier to their career progression and life chances.  The ruling, which focused on four separate cases, rejected three of the appeals by the Home Office over whether those convicted of lesser offences or who received cautions need to disclose them when seeking employment involving contact with children and vulnerable adults. In 2013 the government revised the disclosure scheme and a ‘filtering process’ was introduced.

The revised scheme no longer required disclosure of every spent conviction or caution but required such disclosure in a limited set of circumstances. These were where the conviction or caution was “current”, was in respect of certain specified offences, had resulted in a custodial sentence or where the person had more than one conviction. The Disclosure and Barring Service (DBS), requires past offences to be revealed in a number of circumstances. These include where the conviction or caution is serious, where it is current and not deemed to have been spent under the 1974 Rehabilitation of Offenders Act, where it resulted in a custodial sentence, and where someone has more than one conviction.  Despite the changes in 2013 many campaigners felt that they did not go far enough in allowing people to move on from their past.

The Supreme Court judgment recognised that there were two competing factors to resolve, namely protecting the public and the rehabilitation of offenders.  They felt that the current disclosure system was too harsh and disproportionate in two ways;

  1. That all previous convictions should be disclosed, however minor, where a person has more than one conviction.
  2. In the case of warnings and reprimands issued to young offenders.

The decision follows a government challenge in respect of a Court of Appeal judgment in 2017 over the legality of the scheme. The ruling confirmed the 2016 decision at the High Court that the scheme breached Article 8 of the ECHR which protects the right to private life.

A link to the full judgment can be found here.

This move marks a positive step in allowing people to move on from mistakes from their past, particularly in the case where a reprimand or warning issued to someone as a child limits their opportunities many years later. The government will be watched closely in respect of how they act to implement a more proportionate system for disclosure.

Call Chris Stevens for advice

If you believe that this judgment has raised issues that affect you and any previous criminal records that you might have please contact Chris Stevens at this office to discuss them further.  We have considerable experience in this specialist area of law for which public funding is not available.


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