26-07-2013

Court of Appeal rules DBS checks process a breach of Human Rights

The case involved the appeal of three individuals who were all adversely affected as a result of criminal records of one sort and anther.

All were required to pass enhanced disclosure checks owing to the nature of the work they were seeking to do involving contact with vulnerable adults or children. These checks involve the blanket disclosure of all convictions cautions and warnings. ( They can also include “ soft information” ie police intelligence relating to allegations made and investigated but not resulting in a conviction or caution.)

The fundamental objection of the Court was the failure of the current system “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”. The factors determining relevance, as defined by the court, include the seriousness of the offence, the sentence imposed or other manner of disposal, the time elapsed since the offence, the age of the offender at the time of commission, whether the individual has re-offended, and the nature of the work the individual is applying for.  These factors must also be considered when attempting to strike a balance between the relevance of the information and the severity of the impact it may have on the individual’s Article 8(1) rights. It was accepted that the interference with those rights was justified where there was a need to protect vulnerable members of society and it satisfied the aim of enabling employers to undertake a suitability assessment of an applicant for a post. However, the “blanket” and indiscriminate disclosure was considered to be a disproportionate response to such an aim.

Whilst the Court has made it clear it is for the Government to redesign a suitable scheme presumably with specific filtering mechanisms it has not said how it is to do so and the current system remains in he meantime. The only mechanism at present is the Independent Monitoring Process where dispute on disclosures are raised