22 March 2019 - Article
The judgment dealt with combined cases in which three individuals had been respectively warned, cautioned and convicted by the Police. In two of the cases, the individuals had been under 18 at the time (11 and 16 respectively). In the third, the offence was minor (theft of some false nails). In the first two cases, a full criminal records check was necessary, because the individuals were applying to undertake jobs or study that would bring them into contact with children or vulnerable adults. In the third case, the individual wished to join the Army and was similarly obliged to undergo a full check. However, in her case, there was a conviction, at age 16, for manslaughter and robbery.
The Home Office, in defending the claims, did not dispute that the requirement to give full disclosure of past criminal conduct amounted to an interference with Article 8. However, it argued that the interference was proportionate in order to provide protection to children and vulnerable adults. It also argued that a clear standard was easier to administer and understand and that the consequences of disclosure were limited and not automatic.
The Court disagreed. It said that the whilst the Home Office’s aim was a legitimate one, the means chosen to achieve it, namely a regime which requires indiscriminate disclosure of all convictions regardless of seriousness and relevance to the job to be undertaken, was disproportionate. The regime went further than was necessary to achieve the aim of protecting children and vulnerable adults. That said, it was proportionate to provide that some offences were so serious that they would never become spent – conviction of manslaughter and robbery fell into this category.
The Court observed that the regime can effectively lead to a ‘person’s exclusion from employment’. It recommended, instead, the introduction of a system which took into account the relevance of information about a person’s criminal record to the job for which they were applying, the seriousness of the offence, the age of the individual at the time and whether there is any history of reoffending. While the Court recognised that this was properly something for Parliament to consider, it expressed some doubt that Parliament would do so quickly. Recognising the potential ramifications of its decision for the current regime, the Court of Appeal directed that its decision should not take effect until the Supreme Court had decided an application from the Home Office to appeal. However, the decision will take effect after that step has been taken.
The consequences of this case are far reaching. In practice, the current regime will be unworkable if the Supreme Court either rejects the Home Office application to appeal or goes on to hear the appeal but rejects it, as the lack of an effective filter makes the system, as a whole, fundamentally flawed. Thus, unless it is successful in the appeal to the Supreme Court, the Government will need to enact legislation as a matter of urgency to introduce a filtering system.
How charities should respond
Charities in the meantime may be concerned about how to respond. For the next few weeks, the existing regime will continue, but thereafter the position is uncertain. The Articles of the European Convention on Human Rights do not have direct effect against private employers (as opposed to those in the public sector) and most charities ought not therefore to face claims that they themselves are in breach of Article 8 in making recruitment decisions. However, pending legislation and the introduction of a new system that includes an effective ‘filter’, charities may wish to protect themselves by giving some thought to the relevance of conviction information before turning down applications for employment or volunteering on the basis of it.
In due course, the Charity Commission will have to revise its guidance, which recommends CRB checking for a wide range of positions, but without reference to the relevance of the information disclosed.