Supreme Court Rules On Enhanced Disclosure Certificates And Parallel Self-Disclosure Obligations

Author:Ms Siobhan Mullins and Laurie Swain
Profession:Clyde & Co
 
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In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland); R (P, G & W) v Secretary of State for the Home Department; R (P) v Secretary of State for the Home Department [2019] UKSC 3

In a complex matter, the Supreme Court has provided guidance on the disclosure obligations of those who had been found guilty of lesser offences and/or received cautions when applying for roles involving vulnerable parties and children.

Regulatory regime

Under the Rehabilitation of Offenders Act 1974 / Rehabilitation of Offenders Order (NI) 1978, a person is not generally required to disclose spent convictions to prospective employers. However, there are certain exceptions to this right of non-disclosure, where it includes the person working with children or vulnerable adults.

The Disclosure and Barring Service (DBS) deals with Criminal Record Certificates (CRC) and Enhanced Criminal Record Certificates (ECRC), which may include spent convictions and cautions. The DBS may issue an ECRC when the "applicant's suitability for a specific position of trust or sensitivity is considered".

A more selective system of disclosure was introduced in March 2014 in order to limit convictions and cautions, meaning a person with only one conviction may be exempted in certain circumstances. However, if a person has more than one conviction, all of them must be disclosed irrespective of the seriousness or relevance of these offences.

Background

All of the respondents had convictions or cautions that were considered spent:

Lorraine Gallagher was convicted of one count of failing to wear a seatbelt (from 1996) and a total of five counts of carrying a child under 14 years old without a seatbelt (three counts in 1996 and two in 1998). She qualified as a Social Carer and was admitted to the Register of Social Carers in Northern Ireland in 2013. Mrs Gallagher was the subject of an application for an ECRC. P (aged 28 in 1999) received a caution for the theft of a sandwich, and convictions for the theft of a 99p book and failing to surrender to bail. She received conditional discharges. P qualified as a Teaching Assistant but was unable to find employment. W (aged 16 in 1982) was convicted of ABH after being involved in a fight with a number of boys in 1982. He received a conditional discharge. In 2013 he began a course to obtain a certificate in teaching English to adults. G (aged 13 in 2006) received two police reprimands for sexually assaulting...

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