Criminal records reform is finally achieved
Marc Bloomfield
The journey to reform of criminal records disclosure has been long, but we have arrived at last, says Rosie Brighouse.
On 28 November 2020, nearly two years after the Supreme Court found the regime for criminal records checks to be incompatible with the Human Rights Act 1998, two statutory instruments came into force to rectify the incompatibility (the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020 SI No 1373 and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020 SI No 1364). Multiple convictions and youth cautions will no longer be disclosed automatically to potential employers. Tens of thousands of people will now receive clear Disclosure and Barring Service (DBS) certificates, opening up employment and volunteering opportunities that were previously out of their reach.
These changes have been hard fought for over many years. A very wide range of jobs or volunteering roles require a standard or enhanced criminal records certificate from the DBS, and employers considering applicants for such roles are also empowered to require applicants to disclose their criminal records at the point of application. Risk-averse employers will often choose not to appoint or even shortlist a candidate with a criminal record, with the result that even historic or very minor contact with the criminal justice system can severely restrict a person’s options for the rest of their life. Following the seminal case of R (T and another) v Secretary of State for the Home Department and another [2014] UKSC 35; October 2014 Legal Action 26, the first stage of reforms was introduced, restricting the types of convictions and cautions that had to be disclosed. The system nonetheless resulted in significant unfairness and further litigation was needed.
Consequently, a number of different cases targeting different parts of the regime came together in the Supreme Court as Re application by Gallagher for judicial review (Northern Ireland); R (P, G and W) v Secretary of State for the Home Department and another; R (P) v Secretary of State for the Home Department and others [2019] UKSC 3; April 2019 Legal Action 25.1See also April 2019 Legal Action 9. The court’s judgment, handed down in January 2019, found that two aspects of the regime were disproportionate and therefore in breach of article 8 of the European Convention on Human Rights: first, the multiple conviction rule, which provided that if a person had more than one conviction then they had to be disclosed regardless of how old or minor the convictions might be; and, second, the disclosure of reprimands and warnings given to children (now called youth cautions), the very function of which is to avoid drawing children into the criminal justice system.
The judgment came in the wake of numerous reports and reviews that criticised the existing criminal records system and called for comprehensive reform. The government had repeatedly refused to review the system while the litigation was ongoing, so it was hoped that the Supreme Court judgment would herald a prompt but thorough legislative response. Disappointment followed. An apparent combination of Brexit distraction and political inertia resulted in a very lengthy delay. Plans were eventually announced in July 20202Government plan new changes to criminal records disclosure regime’, Home Office/Ministry of Justice news story, 9 July 2020. and the resulting changes came into force via statutory instrument on 28 November 2020.
The changes are very welcome and have the potential to affect the lives of many thousands of people. They are, nonetheless, limited and address only the two specific parts of the regime identified as disproportionate by the Supreme Court. Concerns remain about the criminal records regime in general, particularly its propensity to compound the injustice and inequality that exist within the wider criminal justice system. The changes have also come into force in the middle of a densely crowded news cycle and accordingly have been largely unreported despite all stages of the actual litigation having received widespread coverage. There is therefore a real risk that those who benefit from the reforms are unaware and will continue, unnecessarily, to avoid applying for any roles that require standard or enhanced DBS checks.
Liberty represented P in the litigation. P had been required by the multiple convictions rule to disclose details of two offences, one of shoplifting and one of failing to attend court, which took place in the midst of a mental health crisis more than two decades ago. As a result, she had been unable to pursue her dream of working with young children as a teaching assistant. Despite winning at every stage, it took approximately six years for this litigation to result in the changes she sought and she is now nearing retirement age. Her perseverance and determination have ultimately been rewarded but we have all learned, once again, that strategic litigation is rarely, if ever, a quick route to success.
1     See also April 2019 Legal Action 9. »
2     Government plan new changes to criminal records disclosure regime’, Home Office/Ministry of Justice news story, 9 July 2020. »

About the author(s)

Description: Rosie Brighouse - author
Rosie Brighouse is a solicitor in the legal team at Liberty.