High Court rules DBS scheme for disclosing criminal convictions unlawful

The High Court ruled today that the criminal record checks scheme used in England and Wales was arbitrary and in breach of Article 8 of the ECHR.

One of the claimants committed two extremely minor offences in 1999 while suffering from a then undiagnosed mental illness, but had committed no crimes since that time. She is unable to secure voluntary positions in schools 16 years later because she must divulge her two convictions when applying for posts working with children, and when she explains the circumstances of the offences  is compelled to reveal details of her medical history.

It was argued on her behalf that this breached her rights under Article 8 of the Human Rights Act, that the system is arbitrary and disproportionate, and requires urgent reform to allow for greater consideration of individual circumstances. There is no process in cases like this by  which the subject can seek to prevent disclosure of convictions on the basis that disclosure in his case is disproportionate, a failing which goes to the legality of the statutory scheme.

The disclosure scheme has come under repeated challenge and was amended  to introduce a filtering system in 2013 following the Supreme Court decision in T v Chief Constable of Greater Manchester  [2014] UKSC 35.

Lord Justice McCombe, in granting the application for judicial review, noted that the rules are capable of producing such questionable results, on their margins, that there ought to be some machinery for testing the proportionality of the interference if the scheme is to be in accordance with the law.

Mrs Justice Carr agreed and whilst she recognised that the circumstances of the two claimants were on the margins  they cannot be said to be unique in terms of what they illustrate. She said:

“ Where the 1997 Act fails to meet the requirements “as to the quality of the law”, the State’s “margin of appreciation” and considerations such as administrative convenience fall away. Nor, where the 1997 Order fails the test for “necessity”, will it be saved merely because it has the merit of simplicity and ease of administration.”

James Welch, legal director for Liberty, which brought one of the claimant’s cases, said:

“This ruling will bring reassurance for the very many people who have had their ambitions dashed because of very small mistakes they made years, or even decades, in the past.”

A Home Office spokesman said:

“We are disappointed by the decision of the court. We will now carefully consider the content of the court’s judgment and whether there are grounds for seeking leave to appeal. This government remains committed to protecting children and other vulnerable people by providing employers with proportionate access to criminal record information in order to support safer recruitment decisions.”

Source: BBC news: Criminal record disclosure checks ruled ‘unlawful’

Practical Law Morag Rea

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