Disclosure of cautions breaches privacy rights, Supreme Court rules

Topics: Criminal justice

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Disclosure of childhood and other minor convictions violates human rights law, the Supreme Court ruled today.

Five judges rejected a joint appeal by home secretary Theresa May and justice secretary Chris Grayling against a Court of Appeal ruling that prospective employers need not be told of convictions and cautions that were spent under the 1974 Rehabilitation of Offenders Act when they asked future employees about their criminal record.

The court said cautions represent an aspect of private life that should be protected and any requirement to disclose them to potential employers was a breach of the right to a private life and would ‘significantly jeopardise’ entry into their chosen field.

The first case involved a man, T, who was forced to reveal two police cautions he had received at the age of 11 in respect of the theft of two bicycles.

The second case involved a woman, JB, who was refused a job in the care sector because of a caution issued eight years previously for theft of a packet of false fingernails.

The Prudential Regulation Authority, Financial Conduct Authority, Liberty and the Equality and Human Rights Commission intervened in the case.

T’s solicitor Mike Pemberton, partner and head of civil liberties at Stephensons, said: ‘It defied common sense that a minor caution at the age of 11 should have to be disclosed on every application for a job of certain types…and [to] have to explain the matter again and again.’
He said the Supreme Court had to balance the rights of individuals with the proportionate needs of society in what is an important area involving public protection.

‘It has applied common sense to the situation. The judgment makes clear that there has to be relevance of the disclosure of personal information to the purpose of the criminal record check.’


Peter Mahy, managing partner of Howells Solicitors in Sheffield, which represented JB, said: ’The way the system of CRB disclosure was operating brought misery to people trying to put matters behind them and secure employment. A more focused and proportionate system  is likely to achieve a fairer result, particularly for those who were unable to get work due to a previous caution for a minor offence committed many years ago. We are delighted that he Supreme Court has found in our favour.”

Dominic Crossley, privacy lawyer and partner at Payne Hicks Beach Solicitors, said: ‘Any interference into a person’s privacy, which is protected by Article 8 of the European Convention, must be justifiable and proportionate’. 

He said the routine examination of old minor convictions should not be allowed to prejudice an individual’s right to seek future employment.   

Crossley said the decision is also consistent with a pattern of decisions in Europe and the UK in which the courts are extending the scope of privacy protection

Readers' comments (3)

  • "The court said cautions represent an aspect of private life that should be protected and any requirement to disclose them to potential employers was a breach of the right to a private life and would ‘significantly jeopardise’ entry into their chosen field."

    So next time, as a victim, when the Police tell you that for the 'minor' offence that the 'bad' person has done/or is suspected of doing, and they want to simply issue them with a caution, we will need to tell the Police that 'no' we won't accept that - as it will have absolutely no bearing on anything, it will not be any kind of punishment/warning, and it won't go anywhere near helping the victim to get any sense of justice and closure!

    It seems that the courts are very good at ruling in favour of the 'bad' people - much less so when it comes to protecting the human interests of all the good innocent victims out there and good people generally in whatever circumstance it might be, criminal or not!

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  • To Anonymous. Surely a caution at age 11 can be grown out of.

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  • To accept a caution has the same effect as pleading guilty to a criminal offence. It remains disclosable in the normal way i.e. not forever (Rehabilitation of Offenders Act). Or am I wrong?

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