Should applicants for work with children or vulnerable adults have to disclose spent convictions?

Supreme Court upholds decision that the rules on disclosing multiple spent convictions in an enhanced DBS check are disproportionate and incompatible

When do spent convictions have to be disclosed?

As a general rule, spent convictions and cautions do not have to be disclosed to a prospective employer. However, if a candidate is seeking work in an "excepted occupation", including roles working with children or vulnerable adults, an enhanced DBS check will be required and this will list all previous convictions, including in some cases spent convictions.

In 2014 the rules were revised to filter out single convictions for non-violent, non-sexual offences with no custodial or suspended sentence after 11 years (or five and a half years where the offence was committed under the age of 18). A job applicant for a role in an excepted occupation with more than one spent conviction, however, must disclose all spent convictions regardless of the nature of the offence or penalty imposed.

Case: R (on the application of P) v Secretary of State for the Home Department

The joined applications included that of Ms P who has for some time unsuccessfully sought work as a teaching assistant. In 1999, she was convicted of theft for stealing a book worth 99p and of a further offence of failing to appear in court.  Because she had more than one spent conviction, each was disclosable in her applications for work with children. She committed these offences when she was suffering from undiagnosed schizophrenia. Her condition has since been diagnosed and is successfully controlled by medication. She has not offended again. Ms P has been faced with the difficult decision of having to disclose her medical history in order to explain the circumstances of her convictions.

Another applicant, Mrs Gallagher, was convicted in 1996 for two offences: failure to wear a seatbelt while driving and for failing to ensure that her children were wearing theirs. She was convicted once again in 1998 of similar offences. In 2014, she applied for a social work role which required disclosure of multiple spent convictions. Mrs Gallagher disclosed her 1996 convictions. She failed voluntarily to disclose her 1998 convictions but these were disclosed on the enhanced DBS check. Mrs Gallagher's job offer was withdrawn on the basis that she had been dishonest in her application.

The Supreme Court decision

The Supreme Court agreed with the lower courts that the rule on disclosing multiple spent convictions is incompatible with the European Convention on Human Rights (the Convention). A public authority can only interfere with the right to respect for privacy under Article 8 of the Convention if that interference is in accordance with the law and is necessary in a democratic society (for example to protect public safety, to prevent crime and for the protection of health or morals). The judges noted that the disclosure rules apply no matter the nature of the offences, their similarity to each other, the number of occasions involved, or the intervals of time separating them. They decided that this interference with the right to privacy could not be regarded as a necessary or proportionate means of informing employers about the likelihood of an applicant offending in the future.

The Supreme Court also determined that the rules are disproportionate in the way they deal with warnings and reprimands given to young offenders. The judges commented that such warnings should have a wholly instructive purpose and that their use as an alternative to prosecution was designed to avoid unnecessarily blighting a young offender's later life and career. They held that having to disclose such warnings to an employer is inconsistent with this purpose.

Comment

Where legislative rules are declared incompatible with the Convention, the rules continue in force, but the matter will go back to the Government to reconsider the rules. It is therefore likely that changes will be made in the future to the rules on disclosing multiple spent convictions and cautions received during childhood.

Employers who work with children and vulnerable adults will be well aware of the safer recruitment rules. However, it is important that applicants are not rejected because of a criminal record without considering the particular risks of employment. Employers should carefully consider: whether the conviction is relevant to the position applied for; the seriousness of the offence; the length of time since the offence was committed; whether there is a pattern of offending; whether the applicant's circumstances have changed since the offending behaviour took place; and any explanation offered by the applicant.

The Government has stated that it is committed to continued membership of the Convention and individuals will continue to be able to take cases to the European Court of Human Rights, even after a "no deal" exit from the EU. However, there remains some uncertainty over the way human rights cases will be dealt with in UK courts in the future. The Government has suggested that it will replace the UK Human Rights Act 1998 with a UK Bill of Rights, but it has postponed any such major change to constitutional legislation while the Brexit process is underway.