Supreme Court rules that minor cautions and convictions shouldn’t be disclosed on criminal record checks, and the filtering process remains

The Supreme Court has today ruled on a landmark case, referred to as T. The full judgement can be downloaded here: [2014] UKSC 35.The two individuals involved in the case had originally appealed against the decision to disclose details of their criminal records in job applications. The individuals had been issued warnings and cautions several years ago, and while one of them had been a child. They argued that the disclosure of these warnings and cautions on their enhanced criminal record certificates, which preventing them from getting certain employment, violated their ECHR, Article 8 rights for respect for private life.The Court of Appeal had previously held that the criminal record check process as part of the Police Act 1997 was incompatible with Article 8. This led to theGovernment introducing a filtering process in May 2013. Despite this, the Government appealed to the Supreme Court.

The Supreme Court today unanimously dismissed the appeals against the declaration of incompatibility in relation to the 1997 Act. Although the court did allow the appeal against the declaration by the Court of Appeal that the 1975 Exceptions Order was ultra vires, this is unlikely to have any practical impact, as it’s the first aspect of the appeal, which was dismissed, which has more practical relevance.

The Court said the disclosures in the two cases “were not necessary in a democratic society” and “were not based on any rational assessment of risk”.

Christopher Stacey, Co-Director at Unlock, today said “We welcome today’s decision. The way that criminal record checks have worked in the past were disproportionate and not based on any rational assessment of risk. We were pleased that the Government tried to resolve this by introducing a filtering system in May 2013, and we’re glad that this system will remain in force following this judgement.”

“However, the filtering system doesn’t go far enough. We know from our Helpline that many people with minor cautions and convictions continue to be excluded from the filtering system that the Government set up, simply because they were charged with more than one offence. As a result, in the first 3 months that the filtering system operated, only 15% of people with convictions had a conviction filtered from their record. This means that 85% will continue to have convictions disclosed on standard and enhanced checks for the rest of their lives.”

“We believe that the filtering process must go further. We will be looking at this judgement carefully to look at what can be done to widen the scope of the filtering process to better enable people with convictions to move on positively with their lives once they’ve become law-abiding citizens.”

For a useful legal summary of this case, click here to visit the UKSC Blog.

For more information on the current filtering process that applies to standard and enhanced criminal record checks, click here.