CRB Regime Deemed Unlawful


The judgment dealt with combined cases in which three individuals had been respectively warned, cautioned and convicted by the Police. In two of the cases, the individuals had been under 18 at the time (11 and 16 respectively). In the third, the offence was minor (theft of some false nails). In the first two cases, a full criminal records check was necessary, because the individuals were applying to undertake jobs or study that would bring them into contact with children or vulnerable adults. In the third case, the individual wished to join the Army and was similarly obliged to undergo a full check. However, in her case, there was a conviction, at age 16, for manslaughter and robbery.

The Home Office, in defending the claims, did not dispute that the requirement to give full disclosure of past criminal conduct amounted to an interference with Article 8. However, it argued that the interference was proportionate in order to provide protection to children and vulnerable adults. It also argued that a clear standard was easier to administer and understand and that the consequences of disclosure were limited and not automatic.

The Court disagreed. It said that the whilst the Home Office's aim was a legitimate one, the means chosen to achieve it, namely a regime which requires indiscriminate disclosure of all convictions regardless of seriousness and relevance to the job to be undertaken, was disproportionate. The regime went further than was necessary to achieve the aim of protecting children and vulnerable adults. That said, it was proportionate to provide that some offences were so serious that they would never become spent - conviction of manslaughter and robbery fell into this category.

The Court observed that the regime can effectively lead to a 'person's exclusion from employment'. It recommended, instead, the introduction of a system which took into account the relevance of information about a person's criminal record to the job for which they were applying, the seriousness of the offence, the age of the individual at the time and whether there is any history of reoffending. While the Court recognised that this was properly something for Parliament to consider, it expressed some doubt that Parliament would do so quickly...

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