Supreme Court ruling on Criminal Records Schemes

31 Jan

On Thursday (30th January) the Supreme Court handed down their judgement in the long running litigation concerning the Criminal Record scheme. 

The case, which was the consolidation of a number of Judicial Reviews by members of the public, was at this latest stage the subject to a final appeal by the Government seeking to overturn the decisions of the Court of Appeal.

The original applicants had all been convicted or received cautions or reprimands in respect of relatively minor offending. It was the case advanced that the disclosure of their criminal records to potential employers has made, or may in future make, it more difficult for them to obtain employment. In each case, the relevant convictions and cautions were “spent” under the legislation designed for the rehabilitation of ex-offenders, set out below. Nonetheless, criminal records had to be disclosed if they applied for employment involving contact with children or vulnerable adults. 

The basis of the challenge was that the schemes in Northern Ireland and Great Britain were incompatible with Article 8 of the European Convention on Human Rights 1950 (“ECHR”), protecting the right to respect for private and family life.

The lower Courts ruled First that the statutory schemes were incompatible with Article 8 ECHR for failing the legality test because of the breadth of the categories in the legislation. Secondly, the statutory schemes were considered disproportionate for failing to sufficiently distinguish between convictions and cautions of varying degrees of relevance.

Supreme Court justices found that the criminal records disclosure schemes were "disproportionate" in two respects.

  • all previous convictions should be disclosed, however minor, where the person has more than one conviction, and
  • in the case of warnings and reprimands issued to young offenders.

In licensing terms this decision will not have a direct impact as the grounds to oppose an application for a personal licence are so tightly drawn (only convictions for relevant offences which are unspent).  However some members of staff who had previously avoided the process for fear of the disclosure of spent convictions may now have more confidence to engage with the process.

Law correct at the date of publication.
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