Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Case lawCriminal recordsHuman rights

Criminal record checks: filtering process is inadequate

by Ryan Stringer 12 Apr 2016
by Ryan Stringer 12 Apr 2016

The High Court has upheld a challenge by way of judicial review to the present criminal record checks scheme, finding that the relevant statutory provisions are incompatible with the European Convention of Human Rights. Ryan Stringer sets out the implications of the decision for employers.

R (on the applications of P and A) v Secretary of State for Justice and others

Criminal record checks

Job applicants with convictions

Recruiting people to work with children and/or vulnerable adults policy

Criminal record checks

Background

Supreme Court decision

In 2013, the Government made two legislative orders amending the criminal record disclosure scheme then in place, as a response in part to a case that ultimately reached the Supreme Court in R (on the application of T) v Chief Constable of Greater Manchester and others.

At the time, the scheme required disclosure of all convictions and cautions, whether current or spent and whatever the nature of the offences, in criminal record certificates and enhanced criminal record certificates.

The Supreme Court held that this was incompatible with art.8 of the European Convention on Human Rights (right to respect for private and family life).

New legislation

The 2013 orders therefore introduced a filtering system. This system filters out single convictions for non-violent, non-sexual offences that did not lead to a custodial sentence or a suspended sentence, after 11 years (or after five-and-a-half years if the person was a minor at the time of the offence).

However, where a person has more than one conviction, those convictions will always be disclosable, regardless of the nature of offences or the circumstances.

The question in this case was whether or not this new filtering system is also incompatible with art.8 of the European Convention on Human Rights.

Facts

First claimant

Ms P worked abroad as a teacher until 1997. She then became unwell and for a period of three-and-a-half years her condition, eventually diagnosed as schizophrenia, was not recognised and remained untreated.

In the summer of 1999, Ms P committed two offences of theft by shoplifting. The objects stolen were a sandwich and a 99p book.

She was cautioned for the first offence and prosecuted for the second and, following the charge, was bailed to appear before the magistrates’ court.

As a result of her health condition and her homelessness at the time, Ms P failed to appear at court and was convicted of both the second theft offence and an offence under s.6(1) of the Bail Act 1976 (absconding while released on bail).

Ms P sought work as a teaching assistant, but was unable to secure employment. She submitted that this failure was due to her disclosable convictions, which required her to explain her mental health history.

Second claimant

Mr A was convicted of the theft of a coat from a market stall in 1981, when he was 17 years old. He was fined £30.

In 1982, 23 days after his 18th birthday, he was convicted of stealing a motorcycle and of driving without insurance. He was sentenced to pay a £50 fine and spend 24 hours at an attendance centre for young offenders.

Mr A has no subsequent criminal history. However, he is also subject to the requirement for lifetime disclosure of his convictions.

Mr A was concerned that his family might learn of his convictions and that his role as a finance director might require him to disclose his convictions to the Financial Conduct Authority.

High Court decision

The application for judicial review was successful. Lord Justice McCombe held that, following the Supreme Court’s decision in the T case, the key question was whether or not the rules afford the individual adequate protection against arbitrariness.

In addition, there must be adequate safeguards that enable proportionality of any interference with an individual’s right to respect for private and family life to be adequately examined.

In deciding that the results of the present scheme were arbitrary, Lord Justice McCombe concluded that, where such questionable results could be produced, there ought to be some machinery for testing the proportionality of the interference.

Implications for employers

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

Until the Government takes further action, employers that require standard or enhanced Disclosure and Barring Service (DBS) checks must ensure that they exercise independent judgment, subject to sector-specific regulations, when considering the weight to attach to previous convictions.

Nacro, the crime prevention charity, recommends that it is good practice for employers to have regard to several factors, including:

  • the relevance to the position in question;
  • the seriousness of the offence; and
  • the length of time since the offence was committed.
Ryan Stringer

Ryan Stringer is an associate at DLA Piper.

previous post
Do I need professional indemnity insurance as an HR consultant?
next post
Can you really blow the whistle about a cramped workstation?

You may also like

Consultation launched after Supreme Court ‘sex’ ruling

20 May 2025

EHRC bows to pressure and extends gender consultation

15 May 2025

Contract cleaner loses EAT race discrimination appeal

14 May 2025

‘Unacceptable to question integrity’ of Supreme Court judgment

2 May 2025

Trans ex-judge to appeal Supreme Court biological sex...

29 Apr 2025

EHRC: Interim update on single-sex spaces draws criticism

28 Apr 2025

Opposition to Supreme Court sex ruling is ‘wishful...

22 Apr 2025

Supreme Court transgender ruling: ‘common sense’ or ‘incredibly...

17 Apr 2025

Supreme Court: legal definition of woman based on...

16 Apr 2025

Philip Green loses human rights case at ECHR

8 Apr 2025

  • 2025 Employee Communications Report PROMOTED | HR and leadership...Read more
  • The Majority of Employees Have Their Eyes on Their Next Move PROMOTED | A staggering 65%...Read more
  • Prioritising performance management: Strategies for success (webinar) WEBINAR | In today’s fast-paced...Read more
  • Self-Leadership: The Key to Successful Organisations PROMOTED | Eletive is helping businesses...Read more
  • Retaining Female Talent: Four Ways to Reduce Workplace Drop Out PROMOTED | International Women’s Day...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+