CRB Checks Breach of Human Rights

Although cases in the European Court of Human Rights regularly attract attention, it is often forgotten that the Human Rights Act gives our own courts power to decide whether UK laws breach the European Convention of Human Rights. This week our own Court of Appeal has taken issue with the UK rules on CRB checking, and held them to be incompatible with Article 8 of the European Convention on Human Rights - the right to respect for private and family life, home and correspondence. This was obviously a close-run thing, and the facts were these.

At the age of 11 Mr T received two warnings from Manchester Police over a couple of stolen bicycles. At 17 he tried to get a part-time job at a local football club. The club requested a criminal record check that showed the bicycle warnings and he didn’t get the job. He complained to the police and they agreed to ‘step down’ the warnings so that only they would know about them. But in 2010 the process of ‘stepping down’ records was abolished. In September that year Mr T enrolled on a university course which involved teaching and contact with children. Once again a criminal record check was carried out and the warnings showed up. From those small beginnings matters developed into this significant legal drama.

Mr T issued judicial review proceedings claiming that the criminal record checking scheme was incompatible with his right to respect for private and family life etc. The High Court dismissed the application. And so it went to the Court of Appeal. They accepted that there was an interference with his Article 8 right, but that it was in pursuance of legitimate aims, namely (i) the general aim of protecting employers, children and vulnerable adults and (ii), the particular aim of enabling employers to make an assessment as to whether an individual is suitable for a particular kind of work. But that is not the end of the matter. It went on to decide that ‘requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate to that legitimate aim’.

Clearly in Mr T’s case those old warnings had no relevance to whether he was suitable to be enrolled on the university course and have contact with children. The Court of Appeal’s objection to the scheme was that there was no connection between the relevance of the information provided and the purpose the request. It rejected the assertion that an employer can be trusted to assess the relevance of a conviction or caution by taking into account matters such as the seriousness of the offence, the age of the offender at the time and the lapse of time since it was committed. Evidence suggests that employers do not always handle and interpret the information correctly and fairly.

The Government plans to appeal to the Supreme Court, so the case of the missing bicycles has a little further yet to travel.

If you have an employment matter, please do not hesitate to contact Eoin Fowell on 01752 292350 or email him at efowell@wolferstans.com