A closer look at background checks

In May 2013, the criminal records system went through its biggest change since 2004’s Bichard report. No more would those with convictions or cautions for trivial offences have to disclose long-spent records when applying for positions ‘exempt’ from the protections of the Rehabilitation of Offenders Act 1974.

But as two little-noticed cases from July 2015 show, the new system has its own unfairness. 

Previously, those with spent convictions and cautions for minor crimes were required ?to disclose their record when applying for ‘exempt’ positions ranging from traffic wardens and child minders to teachers and solicitors. The revelation of even ?a stale, trifling record would represent a ‘killer blow’ for a job application (per Lord Neuberger in L [2009] UKSC 3). 

In response to the two-year review of the criminal records system and the decision in T [2013] EWCA Civ 25, the government set out to ameliorate the harshness of what was, ?in effect, a lifelong disclosure requirement. The result came ?in the form of the ‘protected’ conviction and caution. 

Protected cautions and convictions need not be disclosed in most of the situations where spent records would formally have been revealed. ?A caution becomes automatically protected if it was administered for a crime other than a ‘listed offence’ (which includes offences ranging from affray and actual bodily harm (ABH) through to sexual assault and rape) and at least six years have passed for adult cautions and two years for youth cautions. A conviction only becomes protected if it was not for a ‘listed offence’, did not result in a custodial sentence, is one’s only conviction, and at least 11 years (or five and a half years for juveniles) have elapsed since the date of the conviction. 

The limits of the ‘protected’ status were, however, tested in ?R (on the application of W) v Secretary of State for Justice [2015] EWHC Admin 1952.

As a 16-year-old schoolboy in 1982, W received a conditional discharge for ABH. After 31 years’ uninterrupted good conduct, W wished to teach adults English. ?A disclosure and barring service check, however, revealed W’s historic juvenile indiscretion. ?His arguably irrelevant conviction was disclosed because ABH is a listed offence that can never be ‘protected’. Unsurprisingly, W sought to challenge the lawfulness of the new scheme.

W argued that the new regime disproportionately focused on offences’ categories rather than their context and age, and, consequently, did not strike the right balance between ex-offenders’ privacy and public safety. Why should a man in his late forties be haunted by a childhood crime that resulted only in a nominal penalty? 

Mr Justice Simon did not ?share W’s view, concluding parliament had been free to fix which offences ought to be ‘protected’ and had been entitled to draw a ‘bright line’ between ABH and, say, common assault. ABH is a ‘specified violent offence’ under the Criminal Justice Act 2003’s dangerousness provisions and that suggested a clear rationale for the offence’s being beyond the pale of protection. 

Moreover, W was, in ?effect, proposing that the proportionality of each disclosure of an individual’s past ought to be analysed, which would place far too costly a burden on the state and would generate insufficient certainty as to which records should be disclosed. W’s suggested system would also potentially create its own unfairness by requiring consideration of evidence that might, for some individuals, ?have been destroyed long ago. ?The new disclosure regime did attach sufficient importance to the rights of individuals like W under the European Convention on Human Rights, and the mere existence of an alternative system did not render that regime unwarranted. 

Two days later, Mr Justice Treacy in the High Court of Northern Ireland’s Gallagher’s (Lorraine) Application [2015] NIQB 63 concluded that parliament had attached insufficient importance to the applicant’s right to privacy by excluding her trivial convictions from the ‘protected’ scheme. 

Unlike W, Gallagher’s crimes were not ‘listed offences’. She had, however, more than one conviction for driving offences. Had she only had a single conviction for one of the offences, the record would have been protected, but simply having more than one conviction for a petty offence left her records ‘unprotected’.

Treacy J held that the ?current system ‘did not permit consideration of the relevance of the information to be disclosed or proportionality of that disclosure’ and, because of that ‘complete lack of consideration’, was ‘indiscriminate and thus unlawful’. Moreover, ‘the objective of protecting vulnerable persons [could] be achieved with a less invasive disclosure regime’. A fair balance had not been struck ‘between the rights of the individual and the interests ?of the community’.

It would appear, then, ?that yet another change to the regulation of criminal records is imminent, after the newly minted ‘protected’ system has found itself in need of protection from judicial criticism.

Richard Easton is a solicitor at Sonn Macmillan Walker @SMW_Law www.criminalsolicitor.co.uk