Criminal record checks: filtering process is inadequate

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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

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 sent