Privacy & Information Security Law Blog

On January 29, 2013, the UK Court of Appeal ruled that the UK criminal records disclosure regime is disproportionate and incompatible with the UK Human Rights Act 1998 (the “Act”). The landmark judgment focused on the case of an appellant named “T,” who had received two “cautions” for stealing two bicycles when he was 11 years old. After a number of years, the appellant had to disclose these cautions twice in connection with required criminal records checks: first, at the age of 17, when he applied for a part-time job at a local football club, and again when he applied for a college course.

Under the UK’s current criminal records regime, there is a statutory requirement for criminal convictions and cautions to be disclosed when an individual applies for certain types of employment, such as working with children or vulnerable adults. This requirement applies regardless of whether the conviction or caution is considered “spent” under the UK Rehabilitation of Offenders Act 1974.

The Court ruled that such a blanket requirement for job applicants to disclose convictions and cautions constitutes a breach of an individual’s right to a private and family life (Article 8 of the Act). The Court found that such disclosures had the potential to infringe on privacy rights even though “in one sense, criminal conviction information is public by virtue of the simple fact that convictions are made and sentences are imposed in public.” The Court noted, however, that conviction information “recedes into the past” and then “becomes part of the individual’s private life.” With respect to a caution, the Court noted that it is not made in public, but rather is privately imposed on and communicated to an individual after he or she commits an offense. The Court stated that a caution “is part of an individual’s private life from the outset.” The Court emphasized the significant impact that such a system could have on individuals, reasoning that “the disclosure of historic information about convictions or cautions can lead to a person’s exclusion from employment and can therefore adversely affect his or her ability to develop relations with others.”

The UK government has 28 days to appeal to the Supreme Court, the highest court in the UK. In the absence of an appeal, the UK Parliament will be obliged to reform the criminal records checks system to ensure it is compatible with the Act.