The Court of Appeal has recently ruled that the current criminal records checking system is ‘disproportionate’ and must be changed.
The checking system, designed to provide information to employers about a persons suitability for a role, has been ruled as insufficient to protect their rights to a private life. If someone has a criminal record it can mean that they are not legally allowed to do certain jobs, eg in the medical or education sectors. The Disclosure and Barring Services is responsible for undertaking checks on criminal records. The detail they provide depends on the type of disclosure requested; some roles require disclosure of both ‘spent’ and unspent’ convictions.
The Rehabilitation of Offenders Act sets time limits on convictions until they are considered ‘spent’. Filtering systems are applied so that a conviction no longer appears on a disclosure. Currently, convictions are filtered out when they relate to a non-violent, non-sexual offence once 11 years has passed and so will no longer appear on the disclosures. However this only applies when there was a single offence and conviction. The ‘multiple’ conviction rule means that where there are two or more offences and convictions, the information will not be filtered out.
The recent court case was centred around an individual who had convictions which would have, had it been a single conviction, been filtered out, however the number of offences meant that her disclosure fell within the multiple conviction rule and so appeared on her disclosure. She claimed it was a breach of her human right to have a private life, preventing her from getting a job as a teaching assistant. The Court of Appeal agreed with her. It said that the filtering system should be extended to take into account the number of offences in addition to the type.
This challenge was brought against the government, not the prospective employer, which means that the DBS system has been identified as being at fault rather than the employers interpretation.
If you have an employment issue you wish to discuss, please contact Andrew Bryan on 02392 820747
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