Court of Appeal ruling on criminal records

The Court of Appeal in England this week ruled that the automatic disclosure of all convictions and cautions on CRB checks, regardless of their relevance to the job in question, is disproportionate – and therefore incompatible with the right to private life under article 8 of the Human Rights Act.

The judgment was due to be handed down on 21st December 2012, but in an unusual move the Court delayed making it public because the Government raised concerns about the implications of the judgment for the CRB system.

The case of “T”, in which human rights organisation Liberty intervened, concerned a 21-year-old man who received warnings from Manchester Police when he was 11-years-old in connection with two stolen bikes. This information was disclosed on two occasions; when he applied for a part-time job at a local football club at the age of 17 and later when he applied for a University course in sports studies.

The Master of the Rolls, giving the judgment of the Court, accepted that the disclosure of old convictions and cautions pursues the aim of protecting children and vulnerable adults, but stated that “the statutory regime requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate to that legitimate aim”. The Court objected to the scheme because disclosure is made regardless of relevance to the position applied for.

The Court found that the disclosure system had the potential to interfere with privacy rights because “as a conviction recedes into the past, it becomes part of the individual’s private life” and “the administering of a caution is part of an individual’s private life from the outset”. It also noted that “the disclosure of historic information about convictions…can lead to a person’s exclusion from employment”.

“This sensible judgment requires the Government to introduce a more nuanced system for disclosing this type of sensitive personal data to employers,” said Corinna Ferguson, Legal Officer for Liberty. “For too long irrelevant and unreliable information provided under the blanket CRB system has blighted people’s lives. We hope that long overdue reforms – properly balancing the aim of public protection with privacy rights – will now be forthcoming.”

Subsequently the BBC reported that the Government was seeking leave to appeal the decision.