CRB checking scheme is incompatible with human rights under Article 8 ECHR , 22 February 2013

CRB checking scheme is incompatible with human rights under Article 8 ECHR , 22 February 2013

 In R (on the application of T) v Chief Constable of Greater Manchester [2013] the Court of Appeal has held that the statutory criminal record checking scheme is incompatible with Article 8 of the European Convention on Human Rights (ECHR), the right to a private life. The Court held that while the scheme pursues legitimate aims of protecting employers and vulnerable persons, and enabling employers to make an assessment as to whether an individual is suitable for a particular kind of work, requiring the disclosure of all recorded convictions and cautions is disproportionate.

The Court considered the case of T, who at the age of 11 received two warnings from Manchester Police in connection with two stolen bicycles. At 17 he sought a part-time job at a local football club. The club requested a criminal record check that revealed the warnings, which T believed to be spent. Following representations, the police agreed to reduce the warnings so that only the police had access to the records and they would not be disclosable to third parties. However, in 2010, this process was abolished. In September 2010, T enrolled on a university course which involved teaching and contact with children. Again, a criminal record check revealed the warnings. T issued judicial review proceedings claiming that the criminal record checking scheme was incompatible with his Article 8 right (the right to respect for private and family life, home and correspondence). The High Court dismissed T’s application.

On T’s appeal to the Court of Appeal, the court accepted that the interference with T’s Article 8 right was in pursuance of legitimate aims, namely (i) the general aim of protecting employers, children and vulnerable adults and (ii), the particular aim of enabling employers to make an assessment as to whether an individual is suitable for a particular kind of work. However, it held that ‘requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate to that legitimate aim’.

In T’s case it was difficult to see what relevance the warnings could have to the question of whether he was suitable to be enrolled on the university course and have contact with children. The Court of Appeal held that a fundamental objection to the scheme is that it ‘does not seek to control the disclosure of information by reference to whether it is relevant to the purpose of enabling employers to assess the suitability of an individual for a particular kind of work’. The fact that not all offences are recorded on the Police National Computer – offences that are considered so insignificant are not recorded – is not a proportionate filtering scheme in the context of Article 8 considerations. It rejected the assertion that an employer can be trusted to assess the relevance of a conviction or caution by taking into account matters such as the seriousness of the offence, the age of the offender at the time and the lapse of time since it was committed. Evidence suggests that employers do not always handle and interpret the information correctly and fairly.

This case highlights the strength of the use of human rights pleadings in order to protect one’s employability. It is difficult to see how relatively minor offences committed during childhood can have an everlasting impact during one’s lifetime, affecting their employability and livelihood. This case will be considered a success for many and indicates that common sense has prevailed.


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