Claimants say legislation means minor offences 'could never be cleared from their record'
Those HR professionals responsible for appointments in their organisations will be familiar with pre-screening and background checks, and will know that the Rehabilitation of Offenders Act 1974 allows certain ‘spent’ convictions to be removed from criminal records so individuals do not have to disclose them in specific circumstances.
Where regulated activities are involved, such as working with children and vulnerable adults, both spent and unspent convictions must be disclosed; this includes sectors such as financial services, education and health, and professions such as the medical, legal and accountancy professions. There are strict timescales which apply to different types of offences and some convictions can never be treated as spent.
A recent legal challenge in the High Court, R. (on the application of P) v Secretary of State for Justice, suggests changes are likely to this regime and employers should monitor the case’s progress. It’s not clear yet whether it will be appealed or will result in amendments to the legislation.
The claimants in this judicial review complained that the structure of the legislation meant minor offences in their past could never be cleared from their record and that this was having a disproportionate effect on their employability.
One claimant, now aged 47, had been convicted of theft and breaching her bail conditions in 1999. She had been homeless at the time and had stolen a sandwich and a 99p book. She had a mental health condition (schizophrenia) and had failed to attend court when bailed to appear; but the court had eventually been sympathetic to her circumstances because she was conditionally discharged.
The other claimant, now aged 51, had two convictions: one when he was 17 (for the theft of a coat from a market stall) and one for stealing a motorbike and driving without insurance a few weeks after his 18th birthday.
Under the provisions of the Police Act 1997, the police have discretion when responding to a check request not to disclose old offences that did not require a custodial sentence, unless they consider it is relevant and appropriate to do so. They do not, for example, have to reveal offences falling within less serious categories if the conviction was 11 or more years ago, or 5.5 years ago in the case of an offence committed when the person was under the age of 18.
Ordinarily, these discretions would have been used in the claimants’ cases except that these exemptions do not apply where a person has more than one conviction. Having more than one conviction means the criminal record would never be cleared, regardless of the nature or seriousness of the offences in question. This was the case for the first claimant, even though her convictions were so closely interrelated.
The court decided these rules about lifetime or indefinite disclosure went beyond what was needed legitimately and infringed the claimants’ right to private life under Article 8 of the Human Rights Act 1998 and the European Convention on Human Rights. The legislation has to try to strike a balance between protecting businesses and the public and individuals’ right to privacy.
Until there is more clarity on this issue, employers should be cautious, especially when relying on the disclosure of minor offences which may have little relevance to a particular role or may be many years old. For example, the new ‘senior managers regime’ in force in the financial sector from 7 March 2016, will require employers to assess whether individuals are ‘fit and proper’ to undertake certain functions, such as giving investment advice. The nature and age of any offence will be relevant. This may also be relevant where the situation concerns not just recruitment into the organisation but promotion to a new role.
Organisations should re-visit their approach and practices. Useful guidance is available on this, including the FSA’s factsheet on adverse disclosure and NACRO’s advice on employing someone with a criminal record. Both recommend assessing the particular circumstances and carrying out a risk assessment on a case by case basis, based on the role and nature of the conviction.
Audrey Williams is a partner at Fox Williams LLP
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