Winckworth Sherwood

UK 200 2014 position: 81

Supreme Court rules on the disclosure of minor spent convictions and cautions

The Rehabilitation of Offenders Act 1974 provides that after a period a person’s criminal convictions are ‘spent’, so do not need to be disclosed to prospective employers. A police caution is spent as soon as it is given. However, under subsequent legislation (namely the Rehabilitation of Offenders Act 1974 [Exceptions] Order 1975 and the Police Act 1997), some types of employers were able to request enhanced criminal record certificates (ECRCs). ECRCs disclose every ‘relevant matter’ on the Police National Computer, revealing all spent convictions, no matter how historic or minor.

In R (on the application of T and another) v Secretary of State for the Home Department and another [2014] UKSC 35, which is a decision of the Supreme Court, it was held (upholding a decision of the Court of Appeal) that these ECRC checks and the obligatory disclosure of spent convictions for specified professions or for persons working with children and vulnerable adults violated the right to private life under article 8 of the European Convention of Human Rights and that this interference with human rights was not justified and is unlawful.

The present case concerned two job applicants, T and JB. T was given warnings, aged 11, for stealing two bicycles. When T, aged 19, applied for a role on a sports studies course this had to be disclosed as the role potentially involved interaction with children, as a result of which his place on the course was placed at risk (although he was eventually accepted after the intervention of his solicitor). JB was given a caution for shoplifting some false nails when aged 41. The compulsory disclosure of this caution was the reason she was not put forward for care worker jobs eight years later, after she had completed a training course arranged by the Job Centre for employment in the care sector. Neither T nor JB had any other criminal record…

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