The Home Office has started work on changing the law to make sure certain old and minor cautions and convictions will no longer be disclosed on the certificates issued after criminal records checks.
The move follows a Court of Appeal ruling earlier this year, which stated that the disclosure of all cautions and convictions on a DBS (Disclosure and Barring Service) Certificate, previously known as a CRB (Criminal Records Bureau) certificate, was incompatible with Article 8 of the Convention for Human Rights.
Current position
At the moment, the criminal record checking service allows employers to access the criminal record history of people working, or seeking to work in certain positions. This includes roles such as doctors, dentists, lawyers and accountants – and people applying for jobs in which they would have contact with children and vulnerable adults.
However, concerns have been expressed over the extent of the checks, and the fact that they highlight certain old and minor convictions and cautions that may actually no longer be relevant.
Disproportionate
The issue came to the fore at the end of January this year, when the Court of Appeal ruled that the automatic disclosure of all convictions and cautions on CRB checks, regardless of their relevance to the job in question, is disproportionate – and therefore incompatible with the right to private life under article 8 of the Human Rights Act.
The case in question was that of “T”. It concerned a 21-year-old man who received warnings from Manchester Police when he was 11-years-old in connection with two stolen bikes. This information was disclosed on two occasions; when he applied for a part-time job at a local football club at the age of 17 and later when he applied for a University course in sports studies.
Court ruling
The Court found that the relevance of a conviction or caution to a particular job application depended on a number of factors including seriousness of the offence; age at time of the offence; sentence or otherwise imposed; time since offence committed; whether the individual has reoffended; and the nature of the job applied for.
The Court ruled that the disclosure system had the potential to interfere with privacy rights because “as a conviction recedes into the past, it becomes part of the individual’s private life” and “the administering of a caution is part of an individual’s private life from the outset”.
According to Corinna Ferguson, Legal Officer for human rights group Liberty, the ruling was sensible, requiring “the Government to introduce a more nuanced system for disclosing this type of sensitive personal data to employers.”
Proposals
Since then the Government has been working to develop a set of filtering rules that would remove certain old and minor convictions and cautions from a DBS certificate.
The filtering rules which are now before Parliament for consideration are:
- An adult conviction will be removed from a criminal record certificate if,
- 11 years have elapsed since the date of conviction
- it is the person’s only offence
- it did not result in a custodial sentence, and
- it does not appear on the list of specified offences.
- If a person has more than one offence, then details of all their convictions will always be included.
- An adult caution will be removed after 6 years have elapsed since the date of the caution – and if it does not appear on the list of specified offences.
- For those under 18 at the time of the offence, a conviction received as a young person would become eligible for filtering after 5.5 years – unless it is on the list of specified offences, a custodial sentence was received or the individual has more than one conviction.
- A caution administered to a young person will not be disclosed if 2 years have elapsed since the date of issue – but only if it does not appear on the list of specified offences
The changes will not come into force until after the legislation has completed its passage through Parliament.
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