The respondents had all been convicted or received cautions or reprimands in respect of relatively minor offending. In each case, the relevant convictions and cautions were “spent” under the legislation designed for the rehabilitation of ex-offenders, but criminal records had to be disclosed if they applied for employment involving contact with children or vulnerable adults. The respondents all challenged two related statutory disclosure schemes as being incompatible with Article 8 of the ECHR.

The CA in England and in Northern Ireland upheld the respondents’ case. It held that the schemes failed the legality test because of the breadth of the categories and found the schemes disproportionate for failing to sufficiently distinguish between convictions and cautions of varying degrees of relevance.

The Supreme Court dismissed all but one of the appeals and held that, although legislation requiring disclosure by reference to pre-defined categories is justified, the categories in the legislation are disproportionate.

The ‘multiple convictions rule’, which requires automatic disclosure of all convictions where a person has more than one conviction, was held not to achieve its purpose of indicating propensity as it applies irrespective of the nature, similarity, number or time intervals of offences.

Practical Lessons

The Law Commission of England and Wales and the Justice Select Committee in Westminster have both previously called for the criminal records disclosure scheme to be reconsidered. Around 75% of employers have admitted to rejecting applications that contain any kind of conviction so there is no question that a stigma exists.

This decision has been welcomed by many, but it is worth remembering that the ruling only applies to enhanced criminal records checks where people apply to particularly sensitive roles such as those working with children or vulnerable individuals. However, this decision will open the door for many applicants who will no longer be required to disclose minor past convictions.
https://www.supremecourt.uk/cases/docs/uksc-2016-0195-press-summary.pdf