Regular readers may recall an article published in October last year on the reform of the safeguarding regime and how this would affect the further education sector. Part of the aim of the Protection of Freedoms Act (the “Act”) was to transfer the activity of the Criminal Records Bureau to a new Disclosure and Barring Service and to make its scope less stringent.
Under the Act, non serious criminal convictions were considered ‘spent’ after a period of time, meaning that they did not need to be revealed to a prospective employer. Whilst a feature brought in to strike a balance between respecting civil liberties and protecting the public, this does not apply for those that wish to work with vulnerable adults and young people. In fact, under an enhanced CRB check all convictions and cautions should be disclosed even if ‘spent’.
This feature has been at the centre of a recent decision by the Court of Appeal. Three joint claimants brought a claim against the Commissioner of Police of the Metropolis when they found that they were impeded from gaining entry to university or being offered employment because of cautions and convictions incurred several years before. Two of the claimants were a man aged 21 years who, when 11 had been warned for stealing two bikes, and a woman in her 50s who had been cautioned for stealing a packet of false nails 10 years earlier.
The Court of Appeal held that disclosure of information of this nature to an employer was in breach of an overriding human right aimed at protecting an individual’s private life, as provided for in Article 8 of the European Convention on Human Rights. This means that a public authority, including the police, cannot interfere with an individual’s private life except in certain circumstances including when in the interest of public safety or for the protection of the rights and freedoms of others.
The Government argued that the interference with Article 8 was legitimate, as it was aimed at protecting employers, children and vulnerable adults and at enabling employers to make an assessment as to whether an individual is suitable for a particular work. The Court accepted this point in principle. However, it went on to hold that it would be disproportionate to require the disclosure of all convictions and cautions relating to recordable offences. In particular, the Court could not find the relevance of warnings received at the age of 11 in assessing whether a person was suitable to be enrolled on a university course or being offered a job which required having contact with children.
The Court’s main criticism to the enhanced CRB scheme was that this did not seek to control the disclosure of information and enable employers to make informed decisions. Not all minor offences were recorded on the Police National Computer and therefore an enhanced search would have given a disproportionate account of an individual’s criminal record. This criticism stemmed from the Government’s claim that an employer can be trusted to assess the relevance of a conviction by taking into account the seriousness of the offence, the age of the offender at the time of the offence and the time lapsed since this was committed. The Court rejected this argument as it held that employers are not necessarily able or sufficiently trained to interpret the information given through an enhanced CRB check.
In addition, the Court found that the right of an employer to request a candidate to disclose the warnings as provided under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was also disproportionate and in breach of Article 8 of the Convention.
Having recently completed a reform of the system for CRB checks, the Government did not appreciate the Court of Appeal’s position and has in fact already sought leave to appeal to the Supreme Court. In turn, this Judgment may be welcomed by some Colleges who may not feel qualified to assess the relevance of past minor convictions and fear could result in them rejecting valuable candidates.
It is suggested that further amendments are necessary to clarify which offences can become ‘spent’ and, if so, after how many years and what exceptions could apply. Knowledge of these definitions would both give clarity to College on which offences should be taken in consideration for the purposes of an enhanced CRB check and deter a potential offender from committing offences that carry long term effects. In any event, the Court was clear in its Judgment that any further amendments to the system are an exclusive matter for the Parliament.
Both legislative and judiciary bodies are yet to find a shared view on a proportionate system of enhanced CRB checks. Colleges are advised to watch this space further. Further changes will undoubtedly follow.
Matthew Kelly is a partner at law firm Thomas Eggar, which handles a wide range of related litigation, such as issues relating to FE governance and capital projects