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DBS Checks - Criminal record disclosure scheme infringes human rights
The Supreme Court has ruled that the way workers’ criminal records are disclosed to employers infringes their human rights and this could lead to ‘crucial’ system reform preventing workers being held back by minor infringements from their past.

Specifically, the court rejected the blanket rules requiring automatic disclosure of all convictions where a person has more than one, and the requirement that some childhood cautions be disclosed indefinitely, as “disproportionate”.

This ruling could affect thousands of people who have old or minor criminal records.

The landmark judgment upholds previous rulings by the High Court and the Court of Appeal that the Disclosure and Barring Service (DBS) scheme was “not in accordance with the law”, because it breached the right to a private life, as set out in article 8 of the European Convention on Human Rights.

The Judges rejected government appeals over three cases brought against the Home Office in which the claimants argued the DBS system was hampering their rehabilitation.

The cases included one of a woman who had been convicted of driving without wearing a seatbelt who was fined £10. Another, named only as P, received a caution for the theft of a sandwich from a shop. In the same year, P was convicted of the theft of a book worth 99p while homeless and suffering from undiagnosed schizophrenia.

The third case involved an assault that occurred during a fight after school when the individual was 16 years old. He received a conditional discharge, and has not offended since, though he believes his career has been detrimentally affected by the event.

The court said the rule that required disclosing multiple convictions was “capricious”, describing the inclusion of youth warnings and reprimands as part of the disclosure scheme as an “error of principle”.

Many youths get into trouble as they go through their teenage years and do not realise that what they see as a minor skirmish or “brush with the law” – even to the extent of accepting a caution - can blight their careers for decades. Some do not understand that by accepting a Caution, that means that they now have a criminal record.

According to Unlock, a charity for people with convictions, in the last five years over one million youth criminal records were disclosed on criminal record checks that related to offences from more than 30 years ago.

However, it is important to remember those being declared as a result of a DBS submission only relate to the enhanced criminal records regime that applies to specific jobs, including those involving children and vulnerable adults as well as other sensitive roles.

It remains to be seen how the government will now implement the necessary changes to the DBS system so that it complies with the ruling. Watch this space.
Posted on 24 Feb 2019

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