The UK’s criminal record system has come under distinct scrutiny from the Supreme Court, with regards to the disclosure of all job candidates’ offences despite their relevance.
Most employers will be legally obligated to or will wish to run a Criminal Records Bureau check (a CRB check) on all new job candidates before they start their new role. However, under the Rehabilitation of Offenders Act 1974, employers are prevented from behaving prejudiced towards people whose criminal convictions, cautions, warnings or reprimands have been ‘spent’ after specified periods of time.
Also contained within the Act is the prohibition of employers to dismiss employees on the grounds of an undeclared conviction that has been spent. So for example, if they were to discover an employee had served their time for a conviction previously to taking the job role, an employer would not have grounds to dismiss them.
The only exemption from this law is when the new knowledge of a spent conviction impedes the safety of the individual or those around them. This applies to certain occupations which involve working with children and vulnerable adults.
However, following two instances in which individuals were prohibited from taking up new job roles due to previous spent convictions, the Court of Appeal decided that disclosing all convictions and cautions without considering their relevance to the job environment was unfair.
The Court of Appeal said these cases breached Article 8 of the European Convention on Human Rights, which is the human right to privacy.
The Home Office made some amendments to the criminal records scheme, condensing the types of convictions that must be disclosed in relation to an exempt occupation. This involved the exclusion of juvenile offences that are more than 11 years old and did not result in a custodial sentence.
It appealed nonetheless, but the Supreme Court upheld the Court of Appeal’s decision, on the basis that the current UK criminal records system offers no filtering facility that prevents irrelevant convictions from being disclosed. It did, on the other hand, accept that the new changes introduced help to produce “a more calibrated system”.
It is expected that the current CRB scheme will be open to further changes in the future. In the meantime however, the new scheme means that employers will now only have limited information with which to base their recruitment decisions.
This concept has come under criticism from many.