In this blog, we look at the impact of legislation passed this week in relation to criminal records checking and at what else the Government is proposing in this area.
- Changes to what will be disclosed on a result
Court decisions have again forced the Government to look at the legislative regime underlying what convictions are disclosed when a criminal record check is undertaken. The legislation had already been declared incompatible with human rights once and then in January 2019 the Supreme Court ruled that the Government’s attempt to fix the regime had not gone far enough. In the Supreme Court’s view, the impact of the regime was still disproportionate in some circumstances. The Government has now introduced further amendments which seek to address the aspects which the Supreme Court declared were incompatible.
Under the amended regime, a caution, warning or reprimand issued to someone under the age of 18 no longer has to be disclosed even if the individual is applying for a role where the employer could do an enhanced DBS check. The pre-existing concept of a “protected” caution/conviction has been expanded for these purposes. The “multiple conviction rule” has also been removed. That rule meant that if someone had more than one conviction then all their convictions would appear on a DBS result regardless of the nature of the offence or sentence. This change means that if an individual has more than one conviction, whether any single conviction is to be disclosed will be considered against the rules in its own right, rather than all being automatically disclosed.
- Proposal to reduce time for disclosure of spent convictions
On 16 September 2020, the Government published a White Paper entitled, A Smarter Approach to Sentencing in which it proposed a time reduction in how long it should take for a conviction to become spent. Once ‘spent’ it would no longer be disclosable unless the role is one where the employer is entitled to know about spent convictions.
The proposal would mean that custodial sentences of up to 1 year would become spent after a further 12 months without reoffending (currently these offences become spent after 4 years), sentences between 1 and 4 years would become spent after a further 4 years without reoffending (currently these offences become spent after 7 years), and sentences of more than 4 years would become spent after 7 years without reoffending (currently these offences are disclosable indefinitely). The Government has confirmed that the proposals would not affect convictions for serious sexual, violent and terrorist crimes.
Legislation can be expected next year to bring these changes into effect.
Comment
The Government is trying to strike the right balance between rehabilitating offenders and protecting the public. The Government has committed to increasing employment for ex-offenders and these changes are intended to help towards that as well as seeking to reduce the prospect of further legal challenge to the regime. However there is still a discretion for the police to disclose information about protected convictions/cautions if they reasonably believe it to be relevant.
Good practice is not to have a blanket rule of not employing anyone with a criminal record. If a check does show a conviction then the employer should discuss the result with the individual and if necessary undertake a risk assessment before withdrawing any offer of employment.
For more information, please contact a member of our Employment, Human Resources & Pensions team.
