To Declare or To Not Declare: Do Criminal Records Breach Human Rights?

The criminal record checks system, which is an essential part of some job applications, has recently come under scrutiny after The Court of Appeal ruled that it breaches human rights. Home Secretary, Theresa May, is now facing immense pressure to overhaul the system. Lord Dyson, one of Britain’s most senior judges, declared that it is "extraordinary that nothing has been done. The government needs to pull its finger out and introduce legislation".

The main case put forward in the court hearing was that of a 27 year old man identified as ‘T’, who was given warnings by Greater Manchester Police over stealing two bicycles when he was 11. He was asked to declare the warnings when he applied for a job at a football club at the age of 17 and then again a few years later when he applied to University. The second case was that of ‘JB’ a woman who was cautioned in 2001 for stealing a packet of false nails from a shop in Sheffield. Ten years later, after completing a six week training course, ‘JB’ was turned down for a job that involved working with vulnerable adults. What these two cases demonstrate is that the current ruling applies to minor offences committed by both adults as well as juvenile offenders. In 2003 the criminal record checks system was made stricter after Ian Huntley was found guilty of the murder of two school girls, Holly Wells and Jessica Chapman, in Cambridgeshire. Huntley obtained the job as a school caretaker, where he befriended the two girls, because the police had not revealed information of his chequered past to his employers.
The ruling by three court appeal judges invites the Home Secretary to take the case to the Supreme Court within 28 days; otherwise the ruling that the current system is unlawful will take effect. The judges said they did not accept the Home Office's argument that it was not within their discretion to make a declaration that the current law was incompatible with human rights because parliament was considering the matter. A Judge expressed his concern saying that "this is not a case where we can be confident that parliament will move swiftly to find a solution".
Lord Dyson acknowledged that the disclosure of old convictions and cautions are sought with the aim of protecting children and vulnerable adults, but added that "the statutory regime requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate to that legitimate aim." The appeal court objected to the criminal checks system because disclosure had to be made regardless of its relevance to the position being applied for. Furthermore, they felt that the 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 […] the administering of a caution is part of an individual's private life from the outset". Corinna Ferguson, legal officer for liberty, argued that for too long the CRB system has stained people’s job applications and brought to light irrelevant and unreliable information.
The government now faces the difficult task of balancing the rights of the individual with the protection of children and vulnerable adults. A government spokesman said: "the protection of children and vulnerable groups must not be compromised. We are disappointed by this judgment and are seeking leave to appeal to the Supreme Court".
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