Court litigation and policy debate revolving around the issue of criminal record disclosure are not unique to the United States. Especially in the United Kingdom, the past few years have witnessed important court decisions on the legal framework in place regulating access to criminal history information and the amount of information that can be obtained by third parties. For people with criminal records in the United Kingdom, last month was pretty significant.  This is why I am very happy to post on the CCRC blog a commentary on recent litigation before the UK Supreme Court authored by Christopher Stacey, co-director of Unlock, an independent charity organization that provides a voice and support for people with convictions who are facing stigma and obstacles because of their criminal record. Christopher last month led Unlock’s intervention before the UK Supreme Court. They put forward strong arguments on behalf of those who are unfairly affected by the criminal records disclosure regime.

Before discussing the case, let me briefly summarize the framework of the disclosure regime currently in place in the UK.  This regime and the ongoing court litigation should be particularly interesting to advocates and lawmakers in the U.S. who are working to reform their own regimes.

Following the adoption of the Rehabilitation of Offenders Act in 1974, adult and juvenile convictions automatically become “spent” after the passage of a certain amount of “rehabilitation” time following completion of the sentence if the punishment imposed in court did not exceed a certain threshold provided for by the law (currently, a custodial sentence of over four years). Convictions triggering a custodial sentence of more than four years can never become spent.  Required periods of post-sentence rehabilitation before a conviction is considered spent currently range from one to seven years for adult convictions, and from six months to three and a half years for juvenile offenses.  There is no rehabilitation period before criminal records not resulting in conviction are considered spent.

There are three levels of criminal background checks administered by the Disclosure and Barring Service (DBS), a non-departmental public body of the Home Office. Such different levels of criminal record checks depend on the type of job a person is applying for and related duties.

(1)    Basic level checks: this type of check contains only details of all unspent convictions. Any person one can apply for a basic check and employers can ask all job applicants to apply for a basic check during the hiring process. It potentially applies to each and every position and it is commonly used for jobs in the retail and hospitality industry as well as office work.

(2)     Standard level checks: A standard check discloses an individual’s spent and unspent convictions, cautions (a strong formal warning where you have to admit an offense and agree to be cautioned), and simple police warnings. This more in-depth check is often required for careers such as medical practitioners, lawyers, and accountants.

(3)    Enhanced level checks: this level of check discloses an individual’s full criminal record, reporting spent and unspent convictions, cautions, police warnings and also information held by the Disclosure and Barring Service (for positions in regulated activity) and by the police that is relevant to the role applied for. Enhanced checks are normally required for individuals who wish to work with vulnerable populations such as children, people with disability, and the elderly.

In early 2013, a court case known as ‘T’ found that the automatic disclosure of all convictions and cautions—therefore including both spent and unspent ones—in standard and enhanced checks was disproportionate, and therefore incompatible with the right to private life under article 8 of the UK Human Rights Act. After initial resistance, the Government responded to this case by introducing a so-called filtering system by means of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) Order 2013. The 2013 Amendment Order identified which convictions and cautions can no longer be disclosed in standard and enhanced checks.

In a nutshell, the 2013 Amendment Order established the following: single convictions (meaning that the person has no other conviction on record) for listed non-violent, non-sexual offenses that did not lead to a custodial sentence or a suspended sentence are currently filtered out after 11 years (or after five years and six months if the offender was a minor at the time of the offense) since the date of the conviction. In regard to cautions, the filtering mechanism applies if the caution does not relate to a listed violent or sexual offense and if six years or more (for adults) or two years or more (for minors) have elapsed since the date on which the caution was given.

This is the legal landscape in which the case discussed below by our guest blogger arose.  It challenges the narrow limitations to the disclosure scheme for standard and enhanced checks established by the 2013 Amendment Order.

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Standing up to the Government in the UK Supreme Court: Some Reflections on Last Month’s Landmark Criminal Record Disclosure Hearing:

By Christopher Stacey

In June 2018, the UK Supreme Court heard the appeal of the Government in the case of R (on the application of P) v Secretary of State for the Home Department and others (Case ID: UKSC 2017/0170). In the appeal, the Government argued that their current approach to disclosing old and minor cautions and convictions that cannot become spent on standard and enhanced criminal record checks, often decades later, is fair. The High Court disagreed when in January 2016 ruled that the current system is unlawful. Appealing against the ruling, the Government lost again at Court of Appeal in May 2017. At that point, the Government could (and in my view should) have accepted the verdict and got on with the job of changing the current system. Instead, it dug its heels in and appealed to the highest court in the country. That brings us to last month’s hearing.

Given it was the first time in Unlock’s 18-year history that we’d intervened in a legal case, it was always going to be an interesting experience, but couple that with the magnitude of the issues at stake, and the government’s approach to defending the current system, I think it is important to look back at what happened. Having spent three days in the Supreme Court, I wanted to take some time to reflect on what was a pretty intense experience (and don’t forget you can watch the full hearing on the Supreme Court website).

What lies at the heart of this case is whether it is right that old/minor criminal records are disclosed on standard/enhanced Disclosure and Barring Service (DBS) checks. In general terms, that is perhaps an easier argument for the government to stand behind – they can (and often do) cite general concerns around safeguarding, and default to the position that “it’s up to employers to make a decision” as to how relevant the information is. But what’s interesting here is that the Supreme Court case involves four different individuals, and the government argued that, on the facts of the cases before the court, it was right to continue to disclose, effectively forever. That’s obviously consistent with their position, but when you look at the facts of the cases, it’s quite staggering that the government believes this to be the case. For example, one of the cases involves a man who over 35 years ago, when he was 16 (and so a child), was convicted of assault occasioning actual bodily harm and given a 2-year conditional discharge – because of the categorisation of this type of offense, under the current filtering rules it will never come off his standard or enhanced DBS check.

That’s one of the reasons why Unlock intervened in this case. We felt that it was important to try and help the court to understand the breadth and scale of the issue. Our recent report on youth criminal records is a good example of this, showing how the current system doesn’t just impact on a small number of people (in the last 5 years, nearly 1 million youth criminal records disclosed on standard/enhanced checks were over 30 years old), and it was good to see that information provided by us came up a number of times during the 3-day hearing.

A key argument of the government is that it’s down to employers to decide the relevance. They tried to argue that guidance available to employers was sufficient in ensuring employers treat people fairly. However, as was made clear in court, there is nothing that requires employers to follow guidance of this type, it is not statutory, and indeed much of the evidence before the court shows that employers regularly refuse people with criminal records.

As the recent National Audit Office report into the DBS shows, there are no checks on what employers do with the information provided by the DBS. The DBS itself does not provide detailed guidance or support to employers in ensuring that they carefully assess the relevance of information they receive. In short, the government relies on employers, and employers often don’t do it. Indeed, very often our experience is that an employer takes the very fact that there is information on a DBS as meaning it’s relevant – otherwise, why would the DBS have disclosed it?

It was also strange to see the government seemingly argue that people with criminal records do not have many problems in finding employment. Indeed, the government used an answer that I gave to the Justice Committee (“I would be the first to say that many people with convictions do secure jobs that involve enhanced checks, having disclosed them”) to suggest that there isn’t really a problem. This is a rather mischievous use of that sentence, which was part of a longer answer to a question about the problems people face in employment, where I went on to highlight how “there is a huge problem with the way that many employers think that somebody must have a clean DBS certificate, with nothing on it…the current system often tells employers a lot of information that is irrelevant, but as they are being told it they believe it is relevant because the Government would not be giving them that information unless it was.”

The government’s approach also seems to suggest that the overwhelming majority of employers take an inclusive approach towards criminal records, yet this ignores the government’s own statistics, quoted in their own education and employment strategy, published only last month;

“A YouGov study revealed that 50% of employers would not even consider employing an ex-offender.”

This is a figure we cited in our submission the court, so it was interesting to hear the government seek to challenge this figure – when they themselves have used it in their own employment strategy. Indeed, in recognising the problem that people face as a result of their criminal records, on the Gov.uk web page that links to the strategy, the introduction starts with:

“People with a criminal conviction face several barriers on release from prison, with access to employment and education being at the forefront. Not only are many ex-offenders often unprepared for employment on release in terms of their skills and training, but there remains a stigma among some employers about hiring people with a criminal conviction.”

The government was at pains to point out in court that the regime is one of disclosure, not barring. By that, they’re trying to make the point that the current disclosure system doesn’t stop people from applying, and it’s then up to employers to make a decision. However, the government seemed to accept that because of the cautious approach they’ve taken towards the filtering rules, there’s a lot of cautions/convictions disclosed which are not relevant to most jobs that involve standard/enhanced checks, because it could be relevant for some. Lord Carnath rightly highlighted how this cautious approach results in the balance being erred towards disclosure, where there’s a lot of weight on what employers should do, rather than what the government should do.

There was much discussion about what changes might be needed to the current system. That is something that we will be doing a lot of work on over the coming months, and particularly once the Supreme Court has given its judgment. There are two extremes – a completely automatic, rules-based system, and individual case-by-case judgements. Unlock’s view has always been that the answer lies in the middle – i.e. there needs to be some kind of automatic filtering process that remains – with some changes to the current rules so that more situations are filtered automatically – alongside a discretionary filtering process with a review mechanism.

Ultimately, the Ministry of Justice and Home Office need to fundamentally re-look at their position. I hope that, regardless of the outcome of the Supreme Court, the government revisits its approach to this issue and that it accepts that there are problems with the current system. What worries me most in all of this is that the government doesn’t seem to think there’s any need for change. Perhaps that’s just the position they feel they have to take because of the legal cases. Only time will tell.

Many people are rightly keen to know when the Supreme Court will deliver its judgment. There is no date for when the judgment will be handed down, although it is not likely to be until late 2018, at the earliest.