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Criminal records checks 'unlawful' and 'arbitrary' rules High Court

Disclosing minor silliness no longer required, say judges

Mandatory pre-employment criminal record checks have been ruled unlawful in the UK, following a ruling today in the High Court.

Lord Justice McCombe and Mrs Justice Carr today declared the government's disclosure scheme is incompatible with Article 8 of the European Convention on Human Rights.

The High Court heard the complaints of two people who had suffered professional setbacks after being forced to disclose minor criminal convictions to potential employers.

Lord Justice McCombe, notable for having previously found in favour of elderly Kenyans alleging torture was carried out by the British Kenyan administration, ruled that the criminal record disclosure scheme in the UK was "arbitrary" and unlawful.

The challenge related only to minor offences, and no challenge was made to the rules requiring disclosure for those who have been convicted of violent or sexual crimes.

The Home Office has declared that it will consider whether to appeal the decision.

Among the claimants was a woman identified only as P, who was charged with shoplifting a 99p book in August 1999. After failing to attend her appearance before a Magistrates' Court 18 days later, she was summarily convicted of a second offence under the Bail Act 1976.

In November 1999, she was given a conditional discharge in respect of both offences.

James Welch, legal director for Liberty, which represented P, said that the "ruling will bring reassurance for the very many people who have had their ambitions dashed because of very small mistakes they made years, or even decades, in the past."

"The government must urgently fix this broken system, which rightly allows people with a single minor offence to move on with their lives, while those with two – no matter the nature or circumstances of their crimes – cannot." added Welch.

Lord Justice McCombe ruled that "it was not justifiable or necessary for any individual to have minor offences disclosed indefinitely, from many years ago merely because there is more than one minor offence", as reported the BBC. He added:

[W]here the rules are capable of producing such questionable results, on their margins, there ought, it seems to me, to be some machinery for testing the proportionality of the the interference, if the scheme is to be in accordance with the law

A spokesperson for the Home Office stated: "We are disappointed by the decision of the court. We will now carefully consider the content of the court's judgment and whether there are grounds for seeking leave to appeal.

"This government remains committed to protecting children and other vulnerable people by providing employers with proportionate access to criminal record information in order to support safer recruitment decisions." ®

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