Employment with the police with a criminal record
Sonn Macmillan Walker has successfully challenged the obligation that all aspiring police officers are under to reveal even minor childhood cautions when applying to forces across England and Wales.
Richard Easton represented the claimant (‘R’) in the High Court decision of R (R) v National Police Chief’s Council and Secretary of State for Justice  EWHC 2586 (Admin), a case that has been reported on in national media, including The Times and the BBC.
Richard’s client received a reprimand for theft when she was aged 13. R had helped other schoolgirls shoplift a sarong from Primark. Later, she completed a degree in criminology, and wanted to pursue a career in policing. Frustratingly, her application to work for the police was rejected solely on the basis of her historic reprimand.
In many fields of work a spent caution or conviction cannot be given as a reason for refusing to employ someone. The Rehabilitation of Offenders Act 1974 protects job applicants to ensure they are not prejudiced by spent records. However, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 removes those protections when individuals apply for roles such as police constable. A person may be required to disclose a conviction or caution when applying for these specified jobs, even if the record is not merely spent but also ‘protected’/‘filtered’, with even an old and minor offence being enough to end one’s career before it has started.
In a wide-ranging landmark judgment on prospective employees’ rights to privacy, the High Court concluded that it was unlawful for applicants for jobs such as police constable to have to ‘self-disclose’ trivial cautions.
The Court also concluded that the national policy on when applications for police jobs should be refused on the basis of a criminal record, and the decision to refuse R a job in the police because she had a caution were unlawful.
The Court ultimately decided that employing someone like R as a police officer would not undermine public confidence in the police. On the contrary, refusing to employ someone such as R as a constable might “trouble” the “rational man or woman on the street”.
The R decision marks a significant victory and will likely result in Parliament significantly changing the law on the disclosure of criminal records. Aspiring police officers (and those applying for roles where even “protected” records must be disclosed) may now be free from the burden of disclosing their past errors, with the police being unable now to almost automatically refuse to employ those with minor records. The judgment also strongly suggests that employers will in the future need to consider carefully what use they make of the records that are revealed to them, and that recruitment policies must take account of applicants’ rights to privacy and the need to ensure that bygones truly are bygones.
Barrister Adam Straw of Doughty Street Chambers was instructed by Richard to represent R.
If you are concerned that your past might affect an application for work with the police or for a role that involves high-level background checks, please contact us.
Call Richard Easton or Chris Stevens now on 020 7481 9157 to discuss your circumstances