Court of Appeal rules criminal records disclosure scheme unlawful

03 May 2017

The Government’s criminal records disclosure scheme is disproportionate and breaches people’s right to privacy, the Court of Appeal has ruled today.

Liberty’s client – referred to in this case as P – challenged the rule that anyone who has more than one conviction – regardless of the minor nature of the offences, how long ago they were committed, and the person’s circumstances at the time – is required to disclose them forever when applying for certain types of work. The Court of Appeal declared this rule unlawful under Article 8 of the Human Rights Act, the right to a private and family life.

About the case

P committed two extremely minor offences, arising out of the same incident, in 1999 while suffering from a then undiagnosed mental illness. 

P has committed no crimes since and – more than 17 years later – is seeking voluntary positions in schools with a view to achieving her aim of working as a teaching assistant. 

However, under current rules, she is forced to divulge her two convictions when applying and – in explaining the circumstances of the offences – is forced to reveal details of her medical history.

In January 2016, the High Court found this rule unlawful – but the Government appealed against the decision. The Court of Appeal today ruled against them again.

Liberty believes a more flexible system, which considers individual circumstances in cases of old and minor convictions, should be introduced. This would allow those with more than one conviction for less serious offences to move on.

No challenge was brought by Liberty to the rules that require people to declare convictions for violent or sexual offences, or for convictions that led to prison sentences. 

P’s story

In August 1999, P was charged with shoplifting a 99p book. She was bailed to appear before a Magistrates’ Court 18 days later, but due to her situation at the time, failed to attend and was therefore convicted of a second offence under the Bail Act 1976. 

In November 1999, she was given a conditional discharge in respect of both offences.

P’s two convictions relate to a very specific and short period of her life, and she has no subsequent criminal history of any kind. At the time, she had untreated schizophrenia – a condition which was later diagnosed and treated.

P wishes to work as a teaching assistant, having previous experience of teaching, and has sought voluntary positions in schools. However with each application she is required to disclose her historic convictions, which has the effect of leading to the disclosure of her medical history to explain them.

P said: “It's frustrating that for years I've been unable to pursue my chosen occupation due to minor mistakes I made many years ago when I was unwell.

“But even though I have won, I am not yet in a better position. Until the Government fixes the scheme, as the court makes clear they must, I am still left at a great disadvantage when applying for jobs, both paid and voluntary. I urge them to do so quickly and end this pointless block on my and many others' ability to work.”

Debaleena Dasgupta, Legal Lawyer at Liberty and solicitor for P, said: “This important ruling gives hope to huge numbers of people whose ambitions have been dashed because of minor mistakes they made in the past.

“The Government must urgently fix this broken system that needlessly prevents people from rebuilding their lives and contributing to society. We look forward to seeing a fairer scheme which has the capacity to consider individual circumstances where appropriate.”

Christopher Stacey, Co-director of Unlock, a charity for people with convictions, said:

“We’re delighted with the Court of Appeal’s judgement in this important case, which stands to affect many thousands of people with old or minor criminal records.

“A fairer and more flexible system would be one with expanded automatic filtering rules and a discretionary filtering process with a review mechanism. This would enable those with old and minor convictions to move on positively with their lives and gain employment.

“It is common sense that, while certain offences need to be disclosed to employers, we should not be unnecessarily blighting the lives of people who are trying to get on in life by disclosing old, minor and irrelevant information that holds them back and stops them from reaching their potential. We are excited about the improvements that should follow and are committed to continuing our work with government, the DBS, employers and other key stakeholders to drive forward much needed reforms.”

Contact: Liberty Press Office on 0207 378 3656 / 07973 831128 / pressoffice@liberty-human-rights.org.uk