In the recent case of R (on the application of P) v The Secretary of State for the Home Department [2017] EWCA Civ 321 (“P v. Secretary of State”), the Court of Appeal considered the revised scheme for the disclosure of criminal records and, in particular, whether it appropriately balances the aim of protecting the public with an individual's right to a private life.  The Court of Appeal found that the system, which currently enables retention of information about past misconduct, to be non-compliant with Article 8 of the European Convention on Human Rights (the right to private life).

 

Background to the current DBS regime

The current Disclosure and Barring Service (“DBS”, formerly the Criminal Records Bureau/CRB) regime enables checks to be made in respect of the children and vulnerable adults’ barred lists and into information held by a police force which is considered relevant to the role applied for.  The regime was amended in 2013 by the Police Act 1997 (Criminal Records) (Amendment) Regulations 2013 in response to the Supreme Court case of T v. Secretary of State which held that the original scheme was indiscriminate, and did not strike the correct balance between upholding civil liberties and protecting the public. 

The DBS scheme now no longer requires the disclosure of every conviction and caution.  Instead, the revised scheme only requires disclosure of spent convictions in certain circumstances, e.g. sexual offences, ABH and offences where an individual has two or more convictions.

 

Court of Appeal judgment

The Court of Appeal in P v. Secretary of State considered the proportionality of the current DBS regime and concluded that the regime remains inadequate and requires further amendment to secure compatibility with Article 8 of the ECHR.  The court concluded that, while the revised DBS scheme does not necessarily breach Article 8, it may amount to a breach when applied to certain cases where the particular interference is disproportionate.  

 

In particular, the court held that:

  • The multiple convictions rule may in some cases breach Article 8 of the ECHR.  In making its decision, the court rejected the Government’s argument that it would not be possible to have a mechanism for assessing proportionality of the disclosure on a case by case basis.  
  • The specified offences rule should involve a mechanism to ensure that disclosure is proportionate.  In particular, the Court found that the disclosure of an ABH conviction committed 31 years previously was not proportionate or necessary in a democratic society, and could not have any relevance to the risk that individual posed to the public.

 

Comment

While the Court of Appeal in P v. Secretary of State stopped short of declaring the relevant legislation to be unlawful, its decision is expected to compel the Government to rethink the current DBS regime and, in particular, require an assessment of the proportionality of the information being disclosed in view of the purpose it will serve for the employer. Depending upon the measures adopted by the Government in this regard, and how they are implemented in practice, this will leave employers (particularly those working with children or vulnerable adults) with less information by which to take a decision to employ individuals, even having received an enhanced DBS including the barred lists. It may well, therefore, become ever more important that DBS checks are only one step in the measures adopted to test evidence of suitability in order to ensure safe recruitment into such roles.

 


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Emma Dowden-Teale

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Caraline Johnson

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Lucy McLynn

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Claire Whittle

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Posted on 06/07/2017 in Legal Updates

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