CRB checks breach Human Rights, Court rules

It is widely accepted these days that many people are required to apply for a Criminal Records Bureau (CRB) check when applying for a new job. Usually, these jobs are those that involve working with young people or vulnerable adults such as teachers, nurses, taxi drivers and police officers.

Whilst most people complete this part of the application process without any problems, some find that a minor misdemeanour many years earlier results in them being disregarded by a potential employer.

Over the last 5 or so years, there have been a number of cases heard in the Court of Appeal regarding the ‘fairness’ of these checks and the potential impact that CRB disclosures can have on a person’s life.

As these cases have been dealt with, a set of guidelines has developed which the Chief Constable of the local police force must consider when deciding whether or not to disclose information. These guidelines require the Chief Constable to consider, amongst other things, the following:-

  • The likely impact of disclosure on the person who is applying for the job.
  • The seriousness of the offence.
  • The length of time since the offence was committed.
  • Whether or not the allegations were proven.

In essence, it has been necessary for the Chief Constable to balance the rights of children and vulnerable adults to be properly cared for and protected with the rights of the individual to have privacy.

The problem with this approach is that the guidelines are simply guidelines and do not spell out what sort of circumstances may mean that disclosure should not be made.

The system that has developed for CRB checks is one which involves the Police force informing the individual that all information is to be disclosed unless they can give satisfactory written reasons for the information not to be disclosed. This then puts the onus on the individual, who is usually not legally trained, to make written submissions on a very complex area of law.

Despite the approach of the Court to the disclosure of information on a CRB check, the Government continued to develop more stringent requirements in relation to those who work with children and vulnerable adults by forming the Independent Safeguarding Authority (now the Disclosure and Barring Service), the Childrens’ Barred List and the Adults’ Barred List. For a number of years, it seemed that there was a battle between the Courts and the Government. As a result, the Court of Appeal has found it necessary to assert its authority over the Government.

For the first time, the Court of Appeal has gone further than setting out guidelines and, in a recent ruling, said that the “blanket requirement” to undergo a CRB check is a breach of a person’s right to a private and family life (Article 8 Human Rights Act). The Court of Appeal has ordered the Government to develop a system that is fairer and does not see information that is irrelevant and inaccurate being disclosed to prospective employers. The Court of Appeal has informed the Government that it is unfair to individuals to disclose information such as details of cautions for petty crimes (eg. shoplifting, criminal damage etc) which would not have any bearing on the person’s ability to care for a child or vulnerable adult.

Whilst it is understood that the Government is intending to appeal the decision of the Court of Appeal, this ruling sees a fundamental shift in the attitude of the Courts in respect of disclosing criminal convictions. Indeed, even prior to this decision, Hunt and Coombs have had some success in challenging the decision to disclose information to a potential employer. This current decision can only further help those whose lives have been blighted by malicious, unproven allegations or silly mistakes that occurred whilst young.

This is a major step forward in ensuring that a person’s right to a private life is not considered less important than the rights of children and vulnerable adults.

If you require any advice in relaton to any aspect of this news item then please contact a member of our Dispute Resolution Team:

andy.cave@hcsolicitors.co.uk

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.