On 29 January, the UK Court of Appeal handed down a judgment declaring legislation requiring disclosure of all minor past conviction to be in breach of Article 8 of the European Convention on Human Rights (ECHR) which guarantees the right to respect for private life.
The conjoined cases concerned three applicants. The applicant ‘T’ claimed the Enhanced Criminal Record Check (ECRC) system prevented him from being considered for a part-time job at a local football club due to the disclosure of two cautions for bicycle theft. The applicant ‘JB’ complained that she was refused employment because of a criminal record she sustained after years previously receiving a caution for shoplifting a packet of false nails.
The Court considered the interference with Article 8 and determined two ways in which the disclosure of information about past convictions and cautions could interfere with it. Firstly, disclosure of personal information that individuals wish to keep to themselves can constitute interference. Secondly, the disclosure of historic information about convictions or cautions can lead to a person’s exclusion from employment and can therefore adversely affect his or her ability to develop relations with others, thus interfering with the right to respect for private life.
The Court accepted the interference with T’s Article 8 rights had two legitimate aims: the general aim of protecting employees and in particular, children and vulnerable adults; and the particular aim of enabling employers to make an assessment as to whether an individual is suitable for a particular kind of work.
However, the statutory requirement to disclose all convictions and cautions relating to recordable offences was disproportionate according to the Court of Appeal. The blanket ban went beyond what was necessary. Following the judgment the Government indicated that they will appeal the decision.
Bulletin readers may also recall an European Court of Human Rights (ECtHR) judgment in November 2012 which held the indefinite retention and disclosure of minor criminal records to be in breach of Article 8.