People given police cautions or reprimands as children or those convicted of multiple minor offences may not have to disclose them in future after the government lost a legal challenge to the criminal record checks system.
In a complex ruling on four separate cases, the supreme court rejected three of the appeals by the Home Office over the issue of whether those who were found guilty of lesser offences or cautions need to disclose them when seeking employment involving contact with children and vulnerable adults.
The criminal record checks system, known as the Disclosure and Barring Service (DBS), requires past offences to be revealed in a number of circumstances. These include where the conviction or caution is serious, where it is current and not deemed to have been spent under the 1974 Rehabilitation of Offenders Act, where it resulted in a custodial sentence, and where someone has more than one conviction.
Critics have condemned the system as being too harsh, preventing people with minor past convictions from applying for jobs and moving on with their lives.
The claims were originally brought by four applicants identified only as Lorraine Gallagher, P, G, and W. One involved a woman stealing a sandwich. Gallagher, in Northern Ireland, was convicted of driving offenses involving failing to wear a seatbelt and not using a seatbelt to carry a child.
The court said there were two competing legal interests to resolve: protecting the public and the rehabilitation of offenders.
Lord Sumption, delivering the judgment, said existing criminal records rules were disproportionate on two counts: the way in which they required disclosure for multiple convictions even if they were minor and the way they failed to distinguish between warnings and reprimands issued to juveniles, as opposed to convictions.
Welcoming the decision, Penelope Gibbs of the Standing Committee for Youth Justice, said: “It is great that the supreme court has recognised that there are aspects of the current criminal records regime that are not fit for purpose. But we are disappointed that the judgment did not go further.
“We would like all those who were convicted as children, took the punishment and now live a crime-free life, to be able to move on, free of criminal records. England and Wales is an international outlier in preventing children who commit crimes from getting a second chance. We call on the government to use this judgment as a springboard to radically reform our childhood criminal records system.”
The claimant identified only as P, who was represented by the human rights organisation Liberty, said: “I am glad that this case is over, but will only celebrate when the government finally changes the law and enables me to move on, to work and finally make plans for my future.
“The current rules have left me and many others unable to move on with our lives and contribute to our communities. I hope the government accepts the court’s judgment and creates a just system that fairly considers individual circumstances.”
Corey Stoughton, the advocacy director at Liberty, said: “P made a mistake a long time ago and has been unfairly punished ever since. Using overly broad bureaucratic rules that deny people meaningful careers by forcing them to carry a scarlet letter for life is both cruel and pointless.
“Today’s court decision holds the promise of a fresh start for thousands of people who deserve a second chance. The government must finally reform this disproportionate scheme.”
Enver Solomon, the chief executive of Just for Kids Law, which represented one of the original claimants, said: “We are delighted … to have secured a landmark judgment that will benefit thousands of children issued with cautions each year, a shockingly disproportionate number of whom are from black and minority ethnic backgrounds.
“This judgment makes clear that the disclosure of reprimands
“There is now an overwhelming view shared by the higher courts and MPs that the government should act immediately to ensure no child who is given a caution ends up with a criminal record that stigmatises them for life. The government should also now conduct a wide-ranging review of the entire criminal records disclosure regime for children and young people.”
Christopher Stacey, the co-director of Unlock, who intervened in the case, said: “We are pleased that it has ruled that the criminal records disclosure scheme as it applies to multiple convictions and childhood warnings or reprimands was found to be disproportionate. This is an important ruling which stands to affect many thousands of people with old and minor criminal records who have been unnecessarily anchored to their past.
“Today is a crucial step towards achieving a fair and proportionate filtering system that takes a more calibrated and targeted approach towards disclosing criminal records. Recent reviews by the Law Commission, justice select committee, Charlie Taylor and David Lammy MP have all called for the need to look at the wider criminal records disclosure regime. It is now time for the government to act.”