Shereener Browne analyses the recent decision in T, R (on the application of) v Chief Constable of Greater Manchester & Ors and its impact on employment law.
In 1974, the passing into law of the Rehabilitation of Offenders Act saw an important principle enshrined in statute: that people who have committed certain offences some time ago should, generally speaking be allowed to keep those misdemeanours in their past. At the heart of this legislation was the recognition that an individual’s future should not be blighted by what may often have been a rash decision made in the blush of youth.
A lot has changed since the 70’s. But our attitude towards those who have committed criminal offences, even those who have remained law-abiding for years since their first brush with the law, seems stuck in time. The principle of rehabilitation appears politically unattractive, conjuring up, as it does notions of soft-touch holiday camps for young offenders. The reality today is that those with previous convictions (whether they be spent or unspent to use the language of the statute) find it difficult to secure employment and so move on with their lives.
In its efforts to protect the young and the vulnerable, has the State caused the pendulum to swing too far away from an individual’s privacy in favour of blanket disclosure of old and sometimes minor previous convictions to certain categories of prospective employers?
It was essentially this issue that fell to be decided by the Court of Appeal in the recent case of T, R (on the application of) v Chief Constable of Greater Manchester & Ors  EWCA Civ 25
Was Article 8 engaged?
The Court of Appeal first had to consider whether Article 8 of the European Convention on Human Rights (ECHR) fell to be considered at all. The Master of the Rolls (Lord Dyson) had no hesitation in finding that given the potential of the statutory regime governing the disclosure of convictions, cautions and warnings to limit future employment prospects, Article 8 was engaged. Lord Dyson said this at paragraph 31 of the judgment in relation to the private life issue.
“In one sense, criminal conviction information is public by virtue of the simple fact that convictions are made and sentences are imposed in public. But as the conviction recedes into the past, it becomes part of the individual’s private life. By contrast, a caution takes place in private, so that the administering of a caution is part of an individual’s private life from the outset. Secondly, 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: this too involves an interference with the right to respect for private life. Excluding a person from employment in his chosen field is liable to affect his ability to develop relationships with others, and the problems that this creates as regards the possibility of earning a living can have serious repercussions on the enjoyment of his private life: see Sidabras v Lithuania (2004) 42 EHRR 104, para 48.”
Was the interference proportionate?
The Court then went on to consider whether the interference complained of fell within Article 8 (2) and so was justified and proportionate. In summary, it was argued on behalf of the SSHD that the disclosure of all convictions or cautions was in pursuit of the legitimate aim of protecting the young and the vulnerable. It was legitimate, they argued, for Parliament to draw a clear distinction between, on the one hand information that an individual has committed an offence, and on the other, information falling short of that. It was argued that this “bright line” makes good sense and has the merit of being simple and easy to understand. In rejecting this argument Lord Dyson said this at paragraphs 37 to 39 of the judgment.
“37. We accept that the interference with T’s article 8 rights pursues both (i) the general aim of protecting employers and, in particular, children and vulnerable adults who are in their care and (ii) the particular aim of enabling employers to make an assessment as to whether an individual is suitable for a particular kind of work. But in our judgment, the statutory regime requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate to that legitimate aim.
38. The fundamental objection to the scheme is that it does not seek to control the disclosure of information by reference to whether it is relevant to the purpose of enabling employers to assess the suitability of an individual for a particular kind of work. Relevance must depend on a number of factors including the seriousness of the offence; the age of the offender at the time of the offence; the sentence imposed or other manner of disposal; the time that has elapsed since the offence was committed; whether the individual has subsequently re-offended; and the nature of the work that the individual wishes to do.
39…..The disclosure regime was introduced in order to protect children and vulnerable adults. That objective is not furthered by the indiscriminate disclosure of all convictions and cautions to a potential employer, regardless of the circumstances. A blanket requirement of disclosure is inimical to the ROA and the important rehabilitative aims of that legislation. Disclosure that is irrelevant (or at best of marginal relevance) is “counter to the interests of re-integrating ex-offenders into society so that they can lead positive and law-abiding lives”
The Court was clear that consideration must be given to the facts surrounding the conviction, its age, whether the individual concerned had committed any further offences and whether the potential employment necessitated disclosure of the conviction/caution at issue. It was simply not good enough for the State to adopt the position that disclosure of all convictions/cautions was necessary in pursuit of a legitimate aim when the potential employment concerned working with the young or the vulnerable.
Impact upon employment law
The decision in this case in fact dealt with three separate cases. One of the two cases that was successful in this appeal (the third case was a renewed application for permission to appeal that was ultimately dismissed) concerned a woman (JB) who in 2001 when she was in her early 40s accepted a caution for theft of a packet false nails. In 2009, upon hearing about potential vacancies in the care sector, JB applied and was placed on a 6 week Job Centre training course. She had to be subject to a Criminal Record Bureau (CRB) check upon completion of the course and before she could be put forward for any vacancy. Her 2001 caution was revealed as a result of the check. JB was told that she would not be offered employment as her criminal record rendered her inappropriate for work with vulnerable people. She remained unemployed at the date of the hearing before the Court of Appeal.
The facts of JB’s case highlight the concerns of potential applicants for employment and to employment law advisors. When and how much of one’s previous dealings with the police should a prospective employee disclose on an application form or during an interview? Is it unlawful to withhold information about an old caution received while still a youth?
These kinds of questions are not only thrown up before the start of the employment relationship as in the facts of JB. Anecdotally one hears of employers carrying out “routine” CRB checks following a change in policy and such checks leading to summary dismissals upon the disclosure of a conviction or caution. Could such a dismissal be unfair under section 98 of the ERA 1996?
The answer would very much depend on the individual circumstances of the case. But if the conviction was old (i.e. significantly pre-dating the employment or post-dating the commencement of an employment relationship that has survived for some years without incident), minor and arguably irrelevant to the role performed, then potentially the answer could be “yes”.
There is another worrying, perhaps unintended consequence of a blanket rule requiring the disclosure of convictions, cautions or warnings to specific categories of potential employers. Such a rule may well operate disproportionately against the black and Asian communities.
Studies show that black people are seven times as likely, and Asians twice as likely as white people to be stopped and searched by the police. In 2009 and 2010, black people were 3.3 times more likely to be arrested than white people. Those from a mixed ethnic group were 2.3 times more likely to be arrested than white people. As they are more likely to come into contact with police, it maybe that black and Asian people are more likely to receive warnings, cautions and convictions as compared to the rest of the population.
Article 14 provides that the rights and freedoms guaranteed under the Convention, shall be secured without discrimination on any ground such as, for example, colour. This is not of course a free standing right but could be deployed in conjunction with Article 8.
Perhaps this apparent inequality in the treatment of minorities at the hands of our police force is yet another reason to welcome this decision of the Court of Appeal. A decision that reaffirms the principles behind the ROA set out all those years ago, and one that affords individuals the chance to put their past firmly behind them.