Requirement to disclose all convictions a breach of human rights

The Supreme Court has held that the requirement to disclose all criminal convictions, regardless of their relevance, was incompatible with the right to respect for private life (Article 8) under the European Convention on Human Rights.

In R(on the application of T and others) v Secretary of State for the Home Department and another, T had two spent convictions for the theft of two bicycles when he was 11 years old. These convictions were disclosed when applying for a part-time job at a local football club some years later, and when he sought to enrol on a college course (both applications involved work with children). T sought judicial review, arguing that the system for checking criminal records breached his Article 8 rights.

Article 8 states that everyone has the right to respect for private life. However, this is a qualified right, not an absolute right, and can be interfered with where it is necessary and in the public interest (e.g. prevention of crime, to protect others).

In the present case, the Supreme Court ruled that the disclosure of T’s cautions was an interference with his right to private life. The disclosure of warnings for theft at age 11 bore “no rational relationship” to the role/course he was applying for, nor to the aim of trying to protect the children with whom he may have come into contact. Whilst the aim of the criminal record check was legitimate, requiring a blanket disclosure of all convictions was a disproportionate means of achieving that aim.

Comment

In 2013, the government introduced legislation which allows certain offences to be filtered from a DBS check, so, to some extent, the impact of this case wont be too significant.

However, the case is an important reminder to employers to carefully consider the relevance of any convictions in relation to the role being applied for.

Spent/irrelevant convictions are not a “protected characteristic” and an applicant would not have any direct recourse for a rejection made on the basis of their criminal record. However, employers should be mindful that, in circumstances where an applicant is rejected for an irrelevant conviction, if that rejection was challenged as being “discriminatory” on some other protected ground  (e.g. sex, race, religion etc), it may be more difficult for the employer to rebut any such claim if they do not have a good rationale for the rejection.