Is it fair that whatever you do or have done is a matter of public record, or should you have the right to 'forget' minor indiscretions that are 'spent' and happened a long time ago?
On 29th January 2013 the Court of Appeal held that if you have cautions recorded against you then the duty to disclose them to a prospective employer by way of a CRB background check is not compatible with your right to private life. Far from being a charter to employ those convicted of serious offences, absolute barrister agrees that the declaration that the law is incompatible with your right to a private life is a necessary beginning to compel the government to look at the regime again.
At the moment all recordable offences whether they result in conviction or caution are disclosable. They include all offences for which imprisonment might be imposed (for example dishonesty offences) and a list of other specified offences. If, for example, you have a caution for theft when you were a young child it cannot be right that it lives with you forever, can it? The Court of Appeal agreed. In one case a 17 year old applying for a sports course would have been severely limited in his future career which might include coaching children because of two warnings in connection with two stolen bikes when he was 11 years old. In another case, a woman was cautioned for making an honest mistake in relation to forgetting about an item whilst shopping – she had put it under her elbow at a check-out having paid for the rest of her shopping. Eight years later having completed a 6 week training course she was prevented from taking a job in the care sector because she would be working with vulnerable people and had received this caution.
The Court of Appeal rightly held that the data retention policies of the police meant that all recordable offences needed to be disclosed. They held that this was not a mechanism that was appropriate or compatible with an individual's right to a private life.
Pending obtaining a right to appeal to the Supreme Court, the court held that The Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 is ultra vires - that is, beyond the powers of or unlawful under - the Rehabilitation of Offenders Act 1974 because each of them could not be made under that Act if they were incompatible with Article 8 of the European Conventions on Human Rights, which the Act was not. The court also held that even though committed whilst a youth, a serious offence which carried detention for 5 years was within the discretion of Parliament. It never become 'spent'. Absolute barrister is interested to see whether the government will appeal this decision within its 28 day limit.
If you need help with any CRB issue say hello and get in touch.
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