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Current criminal records regime ruled unlawful by Court of Appeal

The Court of Appeal has issued a judgment that renders the existing criminal records disclosure regime unlawful, in a case that could have far-reaching consequences for charities that rely on CRB checks when making decisions about hiring staff or volunteers.

In the recent case of R (T and others) v GMP, the Court of Appeal ruled that the current CRB regime was an unlawful interference with the right to a private and family life under Article 8 of the European Convention on Human Rights.

However, the government has indicated that it plans to appeal the judgment in the Supreme Court.

The case was brought by three young people who were trying to get jobs or study places. All had had contact with the police in the past – one had been issued with a warning, one with a caution and the third with a conviction for manslaughter and robbery.

While the first two were trying to get jobs that would bring them into contact with vulnerable people, while the third was trying to get into the Army.  All were required to undergo full criminal records checks.

According to the law from Withers, the Home Office in its defence did not dispute that the requirement to give full disclosure of past criminal conduct amounted to an interference with Article 8 of the Convention. However, it argued that this interference was proportionate in order to protect children and vulnerable adults.

But the Court of Appeal disagreed and decided that a regime that requires indiscriminate disclosure of all convictions regardless of seriousness and relevance to the job, was disproportionate and went further than was necessary to achieve the aim of protecting children and vulnerable adults.

The indiscriminate nature of the current regime could stop some people from getting jobs, the court ruled. A better system was needed, which would consider the relevance of a person’s criminal record to the job they were applying for, as well as the age of the person at the time and the seriousness of the crime.

The court said this was something that Parliament should consider, but as it was unlikely that Parliament could do so quickly, in the meantime the existing system could continue as it is until the Supreme Court decides whether to allow the Home Office to appeal the judgment.  However, after that decision has been made, the Appeal Court’s decision will take effect. If the Home Office’s appeal does not succeed, the government will have to act urgently to bring in new legislation for a less indiscriminate vetting system.

Chris Priestley, a lawyer at Withers, said the implications of the case will be far-reaching for charities. While the current criminal records checking regime will remain in place for a few more weeks, beyond that the situation will be uncertain.  

Priestley said most charities should not face claims that they themselves are in breach of Article 8 in making recruitment decisions. However, he added: “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.”

He said that 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.

The Court of Appeal’s decision in the case was handed down on 29 January.

This article was taken from Civil Society – http://www.civilsociety.co.uk/governance/news/content/14470