Do You Have the Right to Put Your Past Behind You?

By Olivia Percival, Writer 10 May 2017

A key case has found that the police criminal record checking system doesn’t do enough to allow people to move on from past criminal behaviour and allegations.  

It’s always going to be difficult to find the right balance between protecting the public from potential harm, and allowing people accused of criminal activity to move on with their lives and gain employment. However, the Court of Appeal has decided the current police scheme gets the balance wrong – meaning that it breaches Article 8 of the Human Rights Convention – the right to respect for private and family life. The Government must now come up with a new system that complies with Article 8.

In the case of P v Secretary of State for the Home Department and Secretary of State for Justice, the court looked at both the legal regime itself, and how it worked in the case of four people who had to disclose details of their criminal records to potential employers.

When do you have to disclose information about previous criminal conduct?

Picture: Keith Allison / Flickr

If you’re applying for certain kinds of jobs or voluntary positions, particularly those working with children or vulnerable adults, you may be required to apply for a certificate showing previous criminal activity and allegations. The existing legal scheme that covers this process is quite complicated. In brief, there are two levels of disclosure:

  • A CRC (criminal record certificate) contains ‘current’ convictions and cautions (ones that took place a certain period of time ago).
  • An ECRC (enhanced criminal record certificate) includes everything you’d get on a CRC plus “spent” convictions and cautions if they relate to specific serious offences (“the serious offence rule”), or where there was more than one conviction (“the multiple conviction rule”).

An ECRC may include “soft intelligence” from police or others, so it doesn’t have to relate to a past conviction. It could just be an allegation that someone made about you.

You can challenge CRCs and ECRCs if you say they’re inaccurate. For an ECRC, you can also ask the police to review whether the information disclosed is relevant to the job applied for.

This system was introduced in 2013 following a legal challenge to the old scheme, which was found to be unfair and in breach of Article 8. However, the four people challenging the new scheme argued that even the amended scheme breached their rights to a private life because it was being applied to them in an unfair and disproportionate way.

Each applicant’s situation was quite different. W, for example, had been convicted of assault when he was 16, but was required to disclose this 31 years later when applying to teach English as a second language. Meanwhile, P had two cautions for shoplifting in 1999, when suffering from schizophrenia. Disclosing her criminal record has prevented her from obtaining a job as a care assistant.

What does Article 8 require?

Article 8 of the Human Rights Convention protects your private, family and home life. However, the State can interfere with those rights in limited circumstances, for example in order to protect the safety of others. To do so, they have to show that the interference is “in accordance with the law” and “necessary in a democratic society”.

What does “in accordance with the law” mean in practice?

The Court of Appeal said that in order to pass this bit of the test, it wasn’t enough for the Government simply to point to a particular law. Instead, the disclosure system had to contain safeguards to make sure the interference with people’s rights was proportionate and fair.

Although the Court didn’t go so far as to say that every case required a mechanism for considering individual factors, the judges agreed that in some circumstances a filter was needed to take into account of things such as the nature of the offence and the length of time since the person was convicted. Essentially, “the more tenuous the link or relationship between the offending and the public interest to be protected, the more likely that the scheme will tip over and fail this initial Article 8 hurdle.”

The Multiple Conviction Rule and The Serious Offence Rule

The Court of Appeal’s key finding was that the multiple conviction rule and the serious offence rule weren’t in accordance with the law. This was because they would apply no matter what the nature of the case, how long ago it took place, or whether it had any relevance to the job applied for. This could result in unfair decisions.

What happens now?

The Court of Appeal has found that the current system is unlawful, but it can’t make the new rules itself. It’s now for the Government to devise a system that meets the requirements of Article 8. However, the judge did say that ‘without some mechanism to ensure that disclosure is proportionate and linked to the protection of the public’ the system would still be in breach of the right to private life.

Debaleena Dasgupta, legal officer at human rights group Liberty and solicitor for P, said, ‘We look forward to seeing a fairer scheme which has the capacity to consider individual circumstances where appropriate.’

Want to know more about this kind of stuff? We’ve got plenty more resources!

  • You can read the full judgment here and a more detailed explanation of the case here 
  • There’s also our beautiful infographic which details the right to privacy 
  • See some key cases on what human rights do for privacy 

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About The Author

Olivia Percival Writer

Olivia is a qualified solicitor who has worked in private practice and for the Government Legal Service. She is currently working at the Council of Europe.

Olivia is a qualified solicitor who has worked in private practice and for the Government Legal Service. She is currently working at the Council of Europe.