Supreme Court rules that disclosure of youth reprimands to an employer is incompatible with human rights legislation

Summary

The Supreme Court ruled that having to disclose youth reprimands to an employer was incompatible with human rights legislation, so a child issued with a youth caution should not have to disclose this when applying for a job. The Court held that disclosure of youth reprimands was incompatible with human rights law, more specifically the right to a private and family life. They held that the blanket rule to automatically disclose all convictions where there are more than one and the requirement for some childhood cautions be disclosed indefinitely was disproportionate. Gallagher and R (on the application of P, G and W) v Secretary of State for the Home Department and others [2019] UKSC 3

Facts

Four test cases were put forward to the court to outline how the disclosure of minor offences had prevented individuals from employment opportunities. Three out of four of the cases were found to be incompatible with Human Rights legislation and we will outline two of these below.

In the first case, P was given a caution for the theft of a sandwich from a shop in 1999, and three months later convicted in the Magistrates’ Court for theft of a book worth 99p while she was homeless and suffering from undiagnosed schizophrenia. She failed to surrender to bail and received a conditional discharge for both offences. Her mental illness is now under control and she has committed no further offences. She qualified to work as a teaching assistant but has not been able to find employment, which she believes is due to being obliged to disclose her convictions on each job application.

In the second case, G when he was 13 years old was arrested for sexually assaulting two younger boys. These offences were potentially serious offences but the mitigation was exceptional. The police record indicates that the sexual activity was consensual and in the form of ‘dares’. The CPS decided to prosecute but suggested two reprimands in respect of each of the younger boys. G has not offended since and 5 years later while working as a library assistant in a local college he was required to apply for an enhanced criminal records check because his role involved contact with children. The police informed him they proposed to disclose the reprimands, together with an account of the mitigating circumstances. As a result G withdrew the application and lost his job and feels unable to apply for any job for which a standard or enhanced criminal record check would be required.

Outcome

Under the current regime, the Rehabilitation of Offenders Act 1974 governs that when an ex-offender is directly asked about previous convictions there is no duty of disclosure unless for thirteen specified purposes unless the scenario falls under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (“the 1975 Order” which includes (but not limited to): any employment as a teacher in a school or establishment, any other employment carried out within the precincts of a school or establishment for further education or employment in connection for the provision of social services.

The scheme governing disclosure by the Disclosure and Barring Service deal with Criminal Record Certificates and Enhanced Criminal Record Certificates is outlined under sections 113A – 113B Part V of the Police Act 1997.

Within the above legislation there are provisions relating to the automatic disclosure of all convictions where there is more than one and there are further provisions relating to some childhood cautions to be disclosed indefinitely. The current system has no review mechanism so there is no proportionality or review that takes place before offences are disclosed to an employer.

The Court held that the blanket rule to automatically disclose all convictions where there are more than one was disproportionate and used the case of P to declare incompatibility of the multiple convictions rule under the Police Act 1997 and article 2A(3)(c) of the 1975 Order with human rights legislation.

Secondly, the Court held that G’s case was incompatible with human rights legislation, as this reprimand against a young offender was not proportionate to disclose. Warnings and reprimands had a wholly instructive purpose and their use as an alternative prosecution was designed to avoid any damaging effect on the young offender’s subsequent life. It followed that disclosure to a potential employer would be inconsistent with that purpose.

This decision upholds a 2017 ruling by the Court of Appeal that the disclosure of youth reprimands on DBS forms is inconsistent with their intended purpose as a diversion from the criminal justice system. In addition, it upholds the 2017 parliamentary inquiry that found disclosure mechanisms for juvenile offences could fall short of the UN Convention on the Rights of a Child.

Implications for Employers

In light of this judgment, the Chief Executive of the Disclosure and Barring Service has stated that they will be working closely with the Home Office and Ministry of Justice to agree the necessary steps to adhere to the judgment.

This ruling may see many more applicants apply for positions in roles that require a DBS check. As the education sector is experiencing teacher shortages, this may provide the necessary resources from individuals who under the current regime may not have a chance to secure such a role.

Education clients:

Keeping Children Safe in Education outlines the level of DBS certificate required and whether additional checks (e.g. prohibition checks and management checks) are required when hiring new staff in order to comply with statutory safeguarding requirements. The DBS Check is compulsory on hiring new staff. We expect there to be government guidance in light of this ruling and the changes to the DBS disclosure requirements. Inevitably the changes to DBS checks and enhanced checks will need to reflect safeguarding duties and a balance will need to be met to comply with safeguarding and the applicant’s human rights.

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