New criminal record disclosure rules take effect

1 December 2020 by Samuel March

On the 28^th November 2020, The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020 (“the Order”) came into force, implementing important changes to the criminal records disclosure rules in England and Wales.

The criminal records disclosure regime provides information through Disclosure and Barring Service (DBS) certificates to employers about an individual’s criminal record. That information is then used by employers when considering the suitability of applicants for eligible roles or work.

The Order removes the requirement for automatic disclosure of youth cautions, reprimands and warnings and removes the ‘multiple conviction’ rule, which required the automatic disclosure of all convictions where a person has more than one conviction, regardless of the nature of their offence or sentence.

BACKGROUND

The change can be traced back to the decision of the Supreme Court back in January 2019 in the case of R (P, G & W) v SoSHD [2019] UKSC 3.

In that case, the respondents had received minor cautions and convictions (such as stealing a sandwich, and failing to wear a seatbelt); their criminal records had caused problems for their employment, owing to the disclosure requirements under the Rehabilitation of Offenders Act 1974 and s.113A-B of the Police Act 1997.

They brought a challenge under Article 8 ECHR. The court (Lord Sumption giving the lead judgment) held that the statutory scheme was in general lawful for the purposes of Article 8 ECHR, but that the multiple conviction rule and the ‘serious offences’ rule were both disproportionate.

But Lord Kerr gave a detailed dissenting judgment. He would have held the statutory scheme to be unlawful. Its “inscrutability” in terms of assessing its proportionality meant that the scheme did not involve an interference in Article 8 which was in accordance with the law (para 117). Moreover, the “poverty” of the claimed justification for a bright line rule for disclosure was exposed by the facts of the appeals:

How can it possibly be said that it is necessary to reveal to prospective employers that someone engaged in sexual experimentation at the age of 11, when he has an unblemished record in the many years since? Or that someone was convicted of assault occasioning actual bodily harm at the age of 16, who has led a blameless life since then? Likewise, in the cases of P and Mrs Gallagher.

These cases should not be consigned to the category of unfortunate casualties at the margins. They represent the significant impact that the current policy choice has on a potentially substantial number of individuals. It is entirely possible to draw the boundaries for disclosable information at a level that would exclude persons such as the respondents in this case. I consider, therefore, that the disclosure of the criminal records of the four respondents is plainly disproportionate.

(paras 189-90)

He recommended introducing a review mechanism similar to that used in Northern Ireland (para 174).

In July 2020, the Government announced that, following a careful consideration of the Supreme Court’s judgment, it would be introducing a new regime which

strikes the balance between the needs of protecting people, especially the most vulnerable and children, while ensuring those who have reformed after committing offences are not disproportionately hindered by previous wrongdoing.

AMENDMENT TO THE POLICE ACT 1997

The Order makes amendment to the Police Act 1997 (“the Act”). Under the Act, a “relevant matter” is defined as a matter which, if it is recorded in central records, must be disclosed by the Disclosure and Barring Service in response to an application for a criminal record certificate or an enhanced criminal record certificate.

(a) Under Article 2 of the Order, S.113A of the Act is amended as follows—in subsection (6)(2), in the definition of “relevant matter” as it has effect in England and Wales—

(i) in paragraph (a), for “in relation to a person who has one conviction only” substitute “any of the following convictions”;
(ii) omit paragraph (b); and
(iii) in paragraph (c), after “subsection (6D)” insert “where the person was aged 18 or over on the date it was given”;

(b) in subsection (6E)(3), for the purposes of the definition of “relevant matter” omit paragraph (d)(ii) and the preceding “or”.

EFFECT OF THE ORDER

By narrowing the definition of “relevant matter” for the purposes of the Act, the Order has two significant effects:

1. Youth Cautions: No Youth Cautions, Youth Conditional Cautions, Reprimands or Warnings received in childhood will be automatically disclosed on standard or enhanced DBS checks. This will be the case regardless of the offence.

2. Multiple Convictions: The ‘multiple conviction rule’ no longer has effect. That rule previously required the automatic disclosure of all convictions where a person has more than one conviction, regardless of the nature of their offence or sentence.

Under the new regime, convictions can be filtered from standard and enhanced DBS checks after the relevant time period has passed, even if there is more than one conviction or offence on record. This remains subject to the proviso that the offence is eligible and didn’t lead to a suspended or actual prison sentence. The time periods after which a spent conviction will no longer be disclosed have not changed (11 years unless under 18 when convicted, then it is 5 and a half years). The full list of offences that cannot be filtered remains unchanged and can be found here.

COMMENTARY 

Despite the regime changed being rooted in an adverse court ruling on human rights grounds, the tone of Government announcements has been optimistic and constructive. Introducing the measures back in July, Safeguarding Minister Victoria Atkins said:

By making these adjustments we will ensure that vulnerable people are protected from dangerous offenders while those who have turned their lives around or live with the stigma of convictions from their youth are not held back.

Unsurprisingly, the change has been welcomed by campaigning groups, who have been working with the Ministry of Justice since the judgment of the Supreme Court in 2019.

 Jennifer Twite, Head of Strategic Litigation at Just for Kids Law, said:

Every year, about 25,000 youth cautions are disclosed in criminal record checks, most of which are for incidents that happened over five years ago. This new legislation will help to ensure that no child who is given a caution ends up with a lifelong criminal record that robs them of the chance to get their lives back on track.

Some, however, do feel that the changes could have gone further. Christopher Stacey, Co-director of Unlock, said

The changes […] are a crucial first step towards achieving a fair system that takes a more balanced approach towards disclosing criminal records. 

However, we are still left with a criminal records system where many people with old and minor criminal records are shut out of jobs that they are qualified to do. We found that over a five year period, 380,000 checks contained childhood convictions, with 2,795 checks including convictions from children aged just ten. Many of these childhood convictions will continue to be disclosed despite these changes.

Lord Kerr was the longest serving justice on the court when he retired from the Supreme Court on 30 September. He passed away today, only two months after his retirement. The change to the law arising from this case is part of his very considerable legacy.

Samuel March is a pupil at 5 Paper Buildings. He tweets at @Sam_Oscar_March.