Disclosure of police cautions in criminal record checks breach human rights, the Supreme Court has held.
T & JB v Secretary of State for the Home Department [2014] UKSC 35 concerned a man who was given a police warning after being accused of stealing two bicycles at the age of 11 and a woman who received a police caution after being accused of shoplifting a packet of false fingernails at the age of 41.
The warning was disclosed when the man, T, applied or a part-time job with a football club six years later, and again when he applied for a place on a sports studies course. The woman was unable to take up employment in the care sector eight years later due to the theft being disclosed. Both have no other criminal records. Both claim that the reference in the criminal record checks to their cautions violated their right to respect for private life under Art 8 of the European Convention on Human Rights.
The Supreme Court upheld an earlier Court of Appeal ruling that disclosure breached the appellants’ Art 8 rights.
Claire Hegarty, solicitor at Kingsley Napley, says: “The potential impact is questionable.
“This is because the government introduced a filtering regime last year in response to the Court of Appeal decision in T, meaning certain convictions or cautions no longer need to be disclosed after a specified period of time. Some offences will never be filtered including those of a violent or sexual nature. We have yet to see, however, whether the new rules will be compatible with an individual’s right to respect for their private life.”
A filtering scheme came into operation on 29 May 2013, which means minor convictions and cautions are no longer disclosed.
Mike Pemberton, partner at Stephensons Solicitors, who acted for T, says: “This case has looked at whether the systems established by the Police Act 1997 and Rehabilitation of Offenders Act 1974 requiring disclosure of every past warning or misdemeanour is compatible with the right to privacy and family life under the Human Rights Act.
“It defied common sense that a minor caution at the age of 11 should have to be disclosed on every application for a job of certain types in the future and have to explain the matter again and again. The Court of Appeal took a rational approach in January 2013 and concluded that disclosure of minor issues that were in no way relevant to positions being applied for could not be justified. The judgment caused some potential difficulties because the effect of it may have undermined the legality of all criminal record checks.
“The Supreme Court has therefore had to balance the rights of individuals with the proportionate needs of society in what is an important area involving public protection. It has applied common sense to the situation. The judgment makes clear that there has to be relevance of the disclosure of personal information to the purpose of the criminal record check.”
