High Court rules criminal record checks unlawful

Judges in the High Court ruled last week that mandatory pre-employment criminal record checks are unlawful and arbitrary, as they are incompatible with Article 8 of the European Convention on Human Rights.

The High Court heard the complaints of two people who had suffered professional setbacks after being forced to disclose minor criminal convictions to potential employers. However, the challenges related only to minor offences and no challenge was made to the rules requiring disclosure for those convicted of violent or sexual crime.

Among the claimants was a woman identified only as P, who was charged with shoplifting a 99p book in August 1999. After failing to attend her appearance before a Magistrates’ Court 18 days later, she was summarily convicted of a second offence under the Bail Act 1976. However, in November 1999, she was given a conditional discharge in respect of both offences.

During the hearing, one of the judges ruled that “it was not justifiable or necessary for any individual to have minor offences disclosed indefinitely, from many years ago merely because there is more than one minor offence”.

He added that whether the rules are capable of producing such questionable results, on their margins, there ought to be some machinery for testing the proportionality of the interference, if the scheme is to be in accordance with the law.

The ruling was welcomed by legal lobby group Liberty, which represented P, who said that it 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.”

However, the Home Office said it was disappointed by the Court’s decision and will now “carefully consider” the content of the judgment and whether there are grounds for seeking leave to appeal. A spokesman added that the 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.

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Nigel is the Managing Partner and Head of Litigation and Dispute Resolution in the London office of Mackrell Turner Garrett.