Blog – Standing up to the government in the Supreme Court – Some reflections on last month’s landmark criminal record disclosure hearing

The latest blog by Christopher Stacey reflects on last month’s landmark criminal record disclosure hearing.  

For people with criminal records, last month was pretty significant. The Supreme Court heard the appeal of the Government, which is arguing that their current approach to disclosing old and minor cautions and convictions on standard and enhanced criminal record checks, often decades later, is fair. We disagree with the Government. And so did the High Court when in January 2016 it ruled that the current system is unlawful. Appealing against the ruling, the Government lost again at Court of Appeal in May 2017.

At that point, the Government could (and in my view should) have accepted the verdict and got on with the job of changing the system. Instead, it dug its heels in and appealed to the highest court in the country. That brings us to last month’s hearing.

Given it was the first time in Unlock’s 18-year history that we’d intervened in a legal case, it was always going to be an interesting experience, but couple that with the magnitude of the issues at stake, and the government’s approach to defending the current system, I think it is important to look back at what happened. Having spent 3 days in the Supreme Court, I wanted to take some time to reflect on what was a pretty intense experience (and don’t forget you can watch the full hearing on the Supreme Court website).

First, it’s important to recognise the huge amount of support that we’ve received. We’ve been crowdfunding to cover our legal costs and a huge thank you goes out to everyone that has donated. Now that we’ve raised enough to cover those costs, we’re continuing to raise money through CrowdJustice and everything we now raise will go directly towards our campaign work to help make sure the government takes action when the judgment is delivered.

What lies at the heart of this case is whether it’s right that old/minor criminal records are disclosed on standard/enhanced Disclosure and Barring Service (DBS) checks. In general terms, that’s perhaps an easier argument for the government to stand behind – they can (and often do) cite general concerns around safeguarding, and default to the position that “it’s up to employers to make a decision” as to how relevant the information is. But what’s interesting here is that the Supreme Court case involves 4 different individuals, and the government argued that, on the facts of the cases before the court, it was right to continue to disclose, effectively forever. That’s obviously consistent with their position, but when you look at the facts of the cases, it’s quite staggering that the government believes this to be the case. For example, one of the cases involves a man who over 35 years ago, when he was 16 (and so a child), was convicted of ABH and given a 2-year conditional discharge – because of the categorisation of this type of offence, under the current filtering rules it’ll never come off his standard or enhanced DBS check.

That’s one of the reasons why Unlock intervened in this case. We felt that it was important to try and help the court to understand the breadth and scale of the issue. Our recent report on youth criminal records is a good example of this, showing how the current system doesn’t just impact on a small number of people (in the last 5 years, nearly 1 million youth criminal records disclosed on standard/enhanced checks were over 30 years old), and it was good to see that information provided by us came up a number of times during the 3-day hearing.

A key argument of the government is that it’s down to employers to decide the relevance. They tried to argue that guidance available to employers (such as Nacro’s guidance) was sufficient in ensuring employers treat people fairly. However, as was made clear in court, there is nothing that requires employers to follow guidance of this type, it is not statutory, and indeed much of the evidence before the court shows that employers regularly refuse people with criminal records.

As the recent National Audit Office report into the DBS shows, there are no checks on what employers do with the information provided by the DBS. The DBS itself does not provide detailed guidance or support to employers in ensuring that they carefully assess the relevance of information they receive. In short, the government relies on employers, and employers often don’t do it. Indeed, very often our experience is that the very fact that there is information on a DBS is taken by an employer as meaning it’s relevant – otherwise, why would the DBS have disclosed it?

It was also strange to see the government seemingly argue that people with criminal records do not have many problems in finding employment. Indeed, the government used an answer that I gave to the Justice Committee (“I would be the first to say that many people with convictions do secure jobs that involve enhanced checks, having disclosed them”) to suggest that there isn’t really a problem. This is a rather mischievous use of that sentence, which was part of a longer answer to a question about the problems people face in employment, where I went on to highlight how “there is a huge problem with the way that many employers think that somebody must have a clean DBS certificate, with nothing on it…the current system often tells employers a lot of information that is irrelevant, but as they are being told it they believe it is relevant because the Government would not be giving them that information unless it was.”

The government’s approach also seems to suggest that the overwhelming majority of employers take an inclusive approach towards criminal records, yet this ignores the government’s own statistics, quoted in their own education and employment strategy, published only last month;

“A YouGov study revealed that 50% of employers would not even consider employing an ex-offender.”

This is a figure we cited in our submission the court, so it was interesting to hear the government seek to challenge this figure – when they themselves have used it in their own employment strategy. Indeed, in recognising the problem that people face as a result of their criminal records, on the Gov.uk web page that links to the strategy, the introduction starts with:

“People with a criminal conviction face several barriers on release from prison, with access to employment and education being at the forefront. Not only are many ex-offenders often unprepared for employment on release in terms of their skills and training, but there remains a stigma among some employers about hiring people with a criminal conviction.”

The government was at pains to point out in court that the regime is one of disclosure, not barring. By that, they’re trying to make the point that the current disclosure system doesn’t stop people from applying, and it’s then up to employers to make a decision. However, the government seemed to accept that because of the cautious approach they’ve taken towards the filtering rules, there’s a lot of cautions/convictions disclosed which are not relevant to most jobs that involve standard/enhanced checks, because it could be relevant for some. Lord Carnath rightly highlighted how this cautious approach results in the balance being erred towards disclosure, where there’s a lot of weight on what employers should do, rather than what the government should do.

There was much discussion about what changes might be needed to the current system. That’s something that we’ll be doing a lot of work on over the coming months, and particularly once the Supreme Court has given its judgment. There are two extremes – a completely automatic, rules-based system, and individual case-by-case judgements. Unlock’s view has always been that the answer lies in the middle – i.e. there needs to be some kind of automatic filtering process that remains – with some changes to the current rules so that more situations are filtered automatically – alongside a discretionary filtering process with a review mechanism.

Ultimately, the Ministry of Justice and Home Office need to fundamentally re-look at their position. I hope that, regardless of the outcome of the Supreme Court, the government revisits its approach to this issue and that it accepts that there’s problems with the current system. What worries me most in all of this is that the government doesn’t seem to think there’s any need for change. Perhaps that’s just the position they feel they have to take because of the legal cases. Only time will tell.

Many people are rightly keen to know when the Supreme Court will deliver its judgment. There is no date for when the judgment will be handed down, although it is not likely to be until late 2018, at the earliest.

In the meantime, please support our campaign to wipe DBS checks clean of old/minor criminal records. Donate now here: https://www.crowdjustice.com/case/clean-slate/. Any money we raise will go directly towards our campaign work to make sure the government takes action when the judgment is delivered. This will take our time and resources over the coming months – crucial if we are to make most of the opportunity and get the best possible outcome for people with old and minor criminal records. We really need your support to do this!

More information

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2. Follow #dbsfiltering on Twitter
3. Keep an eye on the DBS filtering policy page on our website.