This page contains brief summaries* of the facts of the cases involved in legal challenges to the DBS filtering system that Unlock is supporting as part of our policy work on the filtering process.

The latest situation in all of these cases can be found here.

 

Case of P (as of 2016)

Ms P is now 47 years old. Until 1997 she worked in Spain and Greece as a teacher. At that stage she become unwell and three and a half years later was diagnosed as suffering from schizophrenia. In 1999 (when she was in her early 30’s) she committed two offences of shoplifting. The first offence involved stealing a sandwich; she was cautioned. The second offence involved stealing a book (priced 99p); she was prosecuted and bailed to appear before a Magistrates court. She was homeless at the time and due to her health, failed to appear at court, so received two convictions – the second theft offence and an offence under the Bail Act 1976.

Mrs P has sought voluntary positions in schools and would like to work as a teaching assistant. Although she’s had some success in obtaining voluntary roles, she’s so far failed to secure paid employment. She believes that having to disclosure her convictions goes against her in getting employment, and carry with them a requirement to explain her past mental health history, to which she attributes her offending behaviour, to her significant embarrassment.

This case was successful in the High Court in 2016. The government appealed to the Court of Appeal. The appeal was rejected in a ruling handed down in May 2017. The government has appealed and the case will now be heard in the Supreme Court. 

 

Case of A (as of 2016)

Mr A is now 51 years old. In 1981, when he was 17, he was convicted of theft of a coat from a market stall. He was fined £30. Ten months later, 23 days after turning 18, he was convicted of stealing a motor cycle and of driving without insurance. He was fined £50 and to 24 hours attendance at an attendance centre.

He’s concerned that his family might learn of the convictions and that his work as a finance director and project manager might require due diligence checks or might engage the Financial Services Authority aspects of the scheme for disclosure of convictions on a standard DBS check.

This case was successful in the High Court in 2016. Appeal has been stayed pending the outcome of P (above). The government has appealed and the case will now be heard in the Supreme Court. 

 

Case of G (as of 2016)

Mr G is in his early 20’s. In 2006, when he was 13 years old, he was issued with two reprimands by an officer of Surrey police for offences of sexual assault on a male under 13. The offences mainly took place when he was 12 against two children that were 9. When G was interviewed by the police, he admitted that mutual masturbation had taken place, graduating to ‘bum sex’. He said he had not forced the others to do anything – at times they had approached him to suggest sexual acts, and at other times it was he who suggested it.

At the time of the reprimands, G’s mother was given a leaflet that told her the consequence of the reprimand was that G would have a record for five years or until he reaches 18, whichever was longer, suggesting his reprimands would be removed in 2011. In 2011, G worked for an employment agency at the library of a local college. He was asked to apply to the CRB for an enhanced disclosure. He was contacted by the police informing him that the reprimands would be disclosed. This led to him withdrawing his application.

This case was successful in the High Court in 2016. The government appealed to the Court of Appeal. The appeal was rejected in a ruling handed down in May 2017. The government has appealed and the case will now be heard in the Supreme Court. 

 

Case of W (as of 2016)

Mr W is 47 years old. In 1982, when he was 16, he was convicted of ABH; he was given a 2-year conditional discharge and bound over to keep the peace for 12 months.

He has since made a success of his life. He wants to obtain a qualification to teach English as a second language and in 2013 began a college course through which a DBS certificate showed his conviction.

This case failed at the High Court. It was successful in the Court of Appeal in a ruling handed down in May 2017. The government has appealed and the case will now be heard in the Supreme Court. 

 

Case of Krol (as of 2016)

Ms Krol received a caution for ABH in February 2007. The victim was the claimants daughter aged 3/4 at the time. In 2011, she applied for a job which involved close contact in someone’s own home and so involved an enhanced check. She disclosed the caution to the potential employer and didn’t get the job.

She has applied to have the caution removed twice, the first time on the basis of inaccurate information and there was no proper evidence of any actual bodily harm to substantiate the more serious charge of assault. The second time it was on the basis that indefinite retention and consequent disclosure of the caution was an unwarranted interference with her rights under article 8 of the European Convention. Her application was rejected each time, but following the second refusal, was informed that “it would be reasonable for the Metropolitan Police Commissioner to review its retention, if you requested it, in 5 years time in 2018” and it has been refused twice.

This case failed at the High Court. It was joined with other cases heard in the Court of Appeal but failed in a ruling handed down in May 2017.

 

Case of Gallagher (as of 2016)

Ms Gallagher has criminal record comprising of convictions on six counts which arose from two incidents.  In the first incident, in 1996, she was stopped by police whilst driving without a seat belt with her three children in the car.  She was convicted on one count of driving without a seat belt and three counts of carrying a child under 14 years of age in the back of a car without a seat belt and fined a total of £85. In the second incident, in 1998, she was convicted of two further offences of carrying children under 14 without a seat belt and was fined £80.

In 2012 and 2013, she was awarded an Access Diploma in combined studies with commendation, a Level 3 QCF Certificate in Working in Community Mental Health Care and Level 2 Diploma in Health and Social Care (Adults) for Wales and Northern Ireland.  She completed training courses in mental health and was admitted to the Northern Ireland Social Care Council’s Register of Social Care Workers.  She worked as an agency worker at a number of Trust health care facilities for adults with learning disabilities.

In February 2014 she applied to the Western Health and Social Care Trust. On the application form she disclosed she had been convicted of an offence of carrying a child without a seat belt on 4 May 1996 and was fined £25.  The application form stated that all convictions must be declared including motoring offences and that, within Health Social Services, criminal convictions are never regarded as spent and, therefore, applicants have to include all convictions even if they occurred some time before.

In June 2014 the Trust offered her a role providing care for adults with learning disabilities.  The offer was subject to her completing and returning a personal declaration form and an Access NI Disclosure Application Form to enable an Access NI check to be carried out in order to obtain an EDC.  On the personal declaration she disclosed a conviction describing it as “carrying child without seatbelt 1996” and also (in relation to the same conviction) as “4 May 1996 carrying child without seat belt fined £25”.  This form had included the statement that “it is important that you list ALL charges, prosecutions, convictions, cautions, binding-over orders even if they happened a long time ago …”

In July 2014 the Access NI check yielded an EDC disclosing all of the respondent’s convictions.  Following interviews with the Trust, the respondent received a letter of 29 September 2014 from the Trust indicating that the offer of appointment had been withdrawn and her name had been removed from the waiting list.

This case was successful in the Court of Appeal in Northern Ireland in 2016. It is being appealed to the Supreme Court.

 

Case of QSA, Fiona Broadfoot and ARB (as of 2017)

The claim, brought by three women and supported in evidence by several others, argues that the Government legislative scheme discriminates against women and is contrary to the UK’s legal obligations in respect of the trafficking of women.

“I met a pimp aged 15 and two weeks later I was thrown into the violent and abusive world of prostitution. Rape became an occupational hazard but I was arrested, charged and criminalised for loitering for the purposes of being a common prostitute. After more than twenty years out of prostitution, I am still having to explain my criminal record to any prospective employer. It feels like explaining my history of abuse” Fiona Broadfoot, Claimant.

The women bringing the claim were all pimped into prostitution when teenagers. All suffered serious violence and abuse on the streets and all struggled after years of such abuse to exit prostitution. The way in which street prostitution has been historically policed means that these women almost invariably have multiple convictions for soliciting. Now, many years after their convictions are spent, each time they wish to apply for a job or volunteer in certain occupational areas, they must disclose these criminal records.

The Government is arguing that the case should be stayed until after a hearing in the Supreme Court in a series of other cases concerning the disclosure of criminal convictions. That hearing is not yet fixed and a judgment in those cases is unlikely to be handed down in less than one year.

Harriet Wistrich, solicitor for the Claimants states, “whichever way that case is decided, it will not examine the inherent sexual discrimination within the legislative scheme, nor its impact on victims of trafficking, nor the failure of the UK to comply with its international treaty obligations in respect of the rights of children.”

The case will reveal the significant psychological impact of being required to provide such disclosure and the impediments it creates for such women contributing to the economy, civil society and providing their own often unique insight and support for other victims of sexual exploitation.

The case will proceed to a full hearing, expected in autumn 2017. 

 

Case of T (as of 2013)

Mr T is 21 years old. When he was 11. He received two warnings in connection with two stolen bicycles. Apart from these, he is a man of good character. In 2008, when 17, he sought a part-time job at the local football club. The club requested an enhanced criminal record check which revealed the warnings. Following representations, the police agreed to ‘step down’ the warnings so that although the police kept access to them, they were not disclosable to third parties. Until the case of Chief Constable of Humberside v Information Commissioner [2010] 1 WLR 1136, there had been a policy of “stepping down” records of less serious offences. The Humberside case decided that such a procedure could not be accommodated within the terms of the 1997 Act, so it was abolished in October 2009.

T heard nothing more about the warnings. In September 2010, he enrolled on a sports studies course at a University. Because that degree involves teaching and contact with children, the University sought an enhanced check. On the commencement of the course, T (believing that the warnings had been “stepped down”, spent and to all intents and purposes, no longer on his record) stated, in answer to a question about his record, that he had no convictions or warnings. The enhanced check disclosed the warnings. The police stated (rightly) that, in the light of the Humberside case, they no longer had the discretion to “step down” warnings, cautions or convictions. Following representations by his solicitor, a revised disclosure was produced. This still revealed the warnings, but contained some additional information.

This case was successful in the Court of Appeal and was instrumental in the government establishing the DBS filtering system in May 2013. His warnings would now be filtered from standard and enhanced checks.

 

Case of JB (as of 2013)

In May 2001, JB went into Superdrug in Sheffield to purchase some moisturising lotion. She was in her early 40s at the time. Whilst she was in the shop, she impulsively decided to purchase a packet of false nails. On approaching the till, she says that she placed the packet of false nails under her arm to enable her to get money out of her bag. She paid for the moisturising lotion (but not the false nails) and left the shop, still with the false nails under her arm. She was apprehended by a member of staff once she had left the premises. She said that she had made an honest mistake and had not intended to steal the false nails. The police attended and decided that a caution would be appropriate. JB accepted the caution on 12 May 2001.

In 2009, she learnt that there were vacancies with an employer in the care sector. She was placed on a 6 week Job Centre training course. Having completed the course, she was subject to a criminal records check before she could be put forward for job opportunities. An enhanced check was issued on 10 March 2010 and it revealed the caution. She was then told that she would not be offered employment as her criminal record rendered her inappropriate for work with vulnerable people.

JB remains unemployed. It is her case that she would have made an excellent carer but for the single caution that she received more than 10 years ago.

This case was successful in the Court of Appeal and was instrumental in the government establishing the DBS filtering system in May 2013. Her caution would now be filtered from standard and enhanced checks.

 

* Please note: These summaries are for guidance purposes only. This page was last updated in April 2017.

 

 

 

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