Landmark case on disproportionate criminal records disclosure regime reaches Supreme Court

The Supreme Court will tomorrow hear the Government’s appeal in a long running case about the disclosure of criminal records. The Government 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. 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. The Government is now taking the case to the Supreme Court. The hearing will run from Tuesday 19 to Thursday 21 June 2018.

Unlock has intervened in the case to help to make sure that the Supreme Court understands the importance of the issue, the failings of the current system, and how it could be changed for the better. This is a first for Unlock; it is the first time we have acted as an intervener before the courts, reflecting the importance of this issue and these appeals.

We’ve put forward strong arguments on behalf of people who are unfairly affected by the criminal records disclosure regime because of its blunt rules which result in, for example, indefinite disclosure in all cases where someone was convicted of more than one offence, no matter how old or minor those offences were.

Christopher Stacey, Co-director of Unlock, a charity for people with convictions, said:

“Our research shows the significant number of people who are being unnecessarily anchored to their past as a result of a DBS filtering system which is blunt, restrictive and disproportionate. In the last 5 years alone, over 1 million youth criminal records were disclosed on standard or enhanced criminal record checks that related to offences from over 30 years’ ago.

 

“The current system has multiple, harsh consequences and damaging effects on individuals – in particular it deters people from applying for employment, and for those that do apply it brings high levels of stress, anxiety and feelings of shame and stigma. It acts as an additional sentence that often runs for life. It desperately needs reform.

 

“A fairer, more proportionate and flexible system should be developed that protects the public without unduly harming people’s opportunity to get on in life. We hope that the Supreme Court will reject the Government’s appeal. We stand ready to work with the Government to reform and implement a system that takes a more calibrated and targeted approach towards disclosing criminal records.”

Rosie Brighouse, Lawyer for Liberty and solicitor for P, one of the individuals in the case, said:

“The criminal records disclosure scheme has twice been ruled unlawful – but instead of putting in place the urgent reform that’s so desperately needed, the Government has chosen to fight this all the way to the Supreme Court.

 

“All P wants to do is move forward with her life. She is unable to do so because of two extremely minor offences committed nearly 20 years ago. We hope judges will agree that this situation is deeply unfair and disproportionate, and that it’s time for the Government to put things right.”

ENDS

Notes 

1. Unlock is an independent, award-winning national charity that provides a voice and support for people with convictions who are facing stigma and obstacles because of their criminal record, often long after they have served their sentence.
2. There are over 11 million people in the UK that have a criminal record.
3. Unlock’s website is unlock.devchd.com.
4. High-resolution images for media use are available from Unlock’s Flickr account.
5. Unlock’s report, A life sentence for young people, was published in May 2018 and can be downloaded at https://unlock.org.uk//youth-criminal-records-report/
6. Unlock has published a briefing on the DBS filtering process – available to download at https://unlock.org.uk//wp-content/uploads/misc/DBS-filtering-Briefing-May-2018.pdf
7. Unlock is represented in these appeals by Salima Budhani and Theodora Middleton, Bindmans LLP, and barristers Caoilfhionn Gallagher QC and Jesse Nicholls, Doughty Street Chambers.
8. There is no date for when the judgment will be handed down. It is not likely to be until late 2018, at the earliest.

About the cases

These appeals consist of 4 cases: P, G, W (appeals from the Court of Appeal of England and Wales) and Gallagher (an appeal from the Court of Appeal of Northern Ireland). In all four cases, the Government is appealing, having lost in the Court of Appeal. There are summaries of the cases on Unlock’s website – https://unlock.org.uk//policy-issues/specific-policy-issues/filtering/cases-challenging-dbs-filtering-system/

The current system

The Police Act 1997 created the Disclosure and Barring Service (DBS – formerly the Criminal Records Bureau), which provides details of a job applicant’s previous convictions to prospective employers. For certain types of work, particularly work with children or vulnerable adults, the standard or enhanced certificates issued by the DBS used to list all the job applicant’s previous convictions.

However, in 2013, the Government amended this scheme following a Court of Appeal ruling (T v Chief Constable of Greater Manchester) to introduce a “filtering” process. Single convictions for non-violent, non-sexual offences that did not lead to a custodial sentence (including a suspended one) will be “filtered” (i.e. not disclosed) after 11 years (five-and-a-half years if the person was under 18 at the time of the offence).

The filtering process does not apply if a person has more than one conviction – regardless of the minor nature of the offences or the person’s circumstances at the time.