Two claimants have complained to the High Court that the way the legislation is structured means that minor offences from their past still have to be disclosed and this is affecting their employability.
The legislation states that individuals must divulge past convictions if there is more than one offence, no matter its age or how minor.
The High Court handed down judgemen t this year in a case in which the two claimants, P and A , were successful in challenging the Government’s rules on disclosure of minor, historic criminal convictions.
They argued that their careers and ambitions were severely limited by having to disclose past convictions that were of no relevance to their work and that it was a stain on their character that had a disproportionate and ongoing effect on their lives.
The judgement places pressure on the Government to further review the disclosure regime in order to protect the right to privacy and rehabilitation of former offenders, whilst at the same time recognising the special requirements of certain sensitive professions, employments and activities.
P, is a 47 year old woman, who in 1999, whilst suffering from untreated schizophrenia, committed two offences of theft by shoplifting, stealing a sandwich and a book worth 99p. For the first offence she was cautioned. She was prosecuted for the second offence and bailed to appear at Oxford Magistrates Court, but she failed to attend court.
She was subsequently convicted of both the theft of the book and failing to appear and received a conditional discharge in respect of each offence. P therefore acquired two minor convictions relating to a very specific and short period of her life. She has no subsequent criminal history of any kind. She now wishes to work as a teaching assistant and has sought voluntary positions in schools. In each application though she is required to disclose the circumstances of her convictions, which has the effect of leading to the disclosure of her medical history and this has prevented her from securing a job.
The second claimant A , was convicted of two minor crimes in 1981 and 1982, when he was 17 and 18 years old respectively. He is now 51 years old and works as a finance director and project manager. He is concerned that he would be forced to disclose his convictions as part of his current employment.
Under the provisions of the Police Act 1997, the police have discretion when responding to a check request not to disclose old offences that did not require a custodial sentence, unless they consider it is relevant and appropriate to do so.
These discretions would have been used in the claimants’ cases except that these exemptions do not apply where a person has more than one conviction. Having more than one conviction means the criminal record would never be cleared, regardless of the nature or seriousness of the offences in question. This was the case for the first claimant, even though her convictions were so closely interrelated.
The court decided these rules on indefinite disclosure went beyond what was needed legitimately and infringed the claimants’ right to private life under Article 8 of the Human Rights Act 1998 and the European Convention on Human Rights.
The legislation has to try to strike a balance between protecting businesses and the public and individuals’ right to privacy. Employers should be cautious, especially when relying on the disclosure of minor offences which may have little relevance to a particular role or may be many years old.