We use cookies to ensure that we give you the best experience on our website. If you continue to use this site we will assume that you agree to our Privacy Policy

/ 18 Jun 2014


The Rehabilitation of Offenders Act has been on the statute books now for 40 years. The Supreme Court which included the President and the Deputy President has handed down today an important judgement on the way this Act is implemented.

The object of the Act was for individuals not to have to disclose so-called spent convictions i.e. convictions which had taken place sometime before (there were differing time limits for the severity of the convictions). The Act has been amended over time so that certain professional bodies and employers (especially those dealing with vulnerable adults and children) are permitted to request an enhanced criminal record certificate (“ECRC”) which discloses all convictions even if now spent.

Two cases were brought challenging whether this was compatible with the Human Rights Act 1998. In the first case of “T” in 2002 a person then aged 11 had received a caution for bicycle thefts and had no other criminal record. In 2008 the person made an application for employment to a football club who demanded an ECRC and the disclosure of the caution had put his job at risk. In the second case of “JB” she had been issued with a caution in 2001 when aged 41 for the theft of some false fingernails. She had no other criminal record. In 2009 she applied for a course to work in the care sector but was refused access after this caution was disclosed.

The Supreme Court held that this violated article 8 of the European Convention of Human Rights in respect to private life and that there were no safeguards against the arbitrary disclosure of personal information. Before there are inflammatory headlines about this being a paedophile charter, the Court recognised that in certain circumstances there might be a need for comprehensive record of all cautions and convictions to be disclosed however, the Court believes that there should be some proportionality in this.

The Court was also concerned with the retention and use by the state of personal data. The amount of information the state keep upon people is enormous and the Court was very concerned of the unnecessary interference in a democratic society and in particular in these two cases. Lord Reed says re T “the disclosure of the warnings of dishonesty which had been given to him when he was young child bore no rational relationship to the aim of protecting the safety of children with whom, as an adult, he might come into contact”. In regard to JB he said “that the impact upon her private life of the disclosure of a caution for minor dishonesty, many years earlier, was disproportionate to its likely benefit in achieving the objective of protecting people receiving care”.

If you are an employer or an employee and require further advice on the implications of this judgement then please contact the Employment Department at Hanne & Co on 020 72280017.

Get in touch
Call us on +