Present System of Criminal Record Disclosure in England “Arbitrary and Unlawful”.
“Arbitrary and Unlawful”?
I have referred before to the truth of the legal maxim “Hard cases make Bad Law”. It refers to the natural wish of the Judge in any particular case to come to a decision which is “fair”, and the way in which this can sometimes appear to turn the law upon its head.
In criminal cases this is not usually a problem. If a crime is committed there will be a conviction, so everyone knows what the law is. Then, if the circumstances call for it, the sentence can be lenient.
But in commercial, employment and contract law things are not so easy. If a landlord is seeking to evict his impoverished tenant, who is perhaps a war hero down on his luck who is unable to pay his rent, it will make a mockery of the law if a Judge allows the lease to continue free of charge, just because he feels sorry about the case. Landlords would, ever afterwards, refuse to let their properties to war-heroes.
Now the problem seems to be appearing again in relation to employment law. The question is, what criminal convictions should be revealed in the Criminal Records Disclosure scheme in accordance with the terms of the Police Act 1997 link here
The purpose of the Act is to enable prospective employers of, for example, primary school teachers, to see whether there is any historical reason in the form of criminal convictions, why a particular job appointment working with children would be unwise, or Cashiers, who have been dishonest in the past.
In the reported case of R (P&A) – Link here in their wisdom the Judges have decided that the present law as it is applied [past offences however minor are to be disclosed if there is more than one] is “arbitrary” and therefore unlawful by the standards imposed by Article 8 of the relevant European Convention.
The example in one cited instance in the case is of a man aged now 51 who aged 17 stole a coat and who then aged 18 took a motor cycle and rode it uninsured. He has no further convictions.
Under the law as it stands, this person’s criminal record is to be disclosed on a Criminal Records Check – such as would be required on a relevant change of job -because he has more than one minor incident recorded against him.
It seem to me that in wishing to protect a man of over 50 from the impediment of his own criminal record incurred as a feckless youth, the Judges have not been particularly helpful to anyone. A Hard case, resulting in Bad Law?
The Judges noted that the man’s family are at present unaware of his “murky past” and that being employed now as a Finance Director, disclosure may jeopardize his future career.
Yes, the Judges heard that a hypothetical second man of 50, with one offence only, as opposed to two of them, when a teenager, would not have to disclose it. And that is the case even if that single office might have been a much more serious example of dishonesty than the theft of a coat from a market stall.
It seems to me to be very telling that in this case one Judge referred to the basis of the scheme being a decision by Parliament that “it was preferable to make the prospective employer or other registered person the judge of the relevance of the disclosure to his decision. Rely on him (they say) to sift the wheat from the chaff“
But, the Judges wonder, will he do so? In these days of keen competition and defensive decision-making will the candidate with the clean record not be placed ahead of the other, however apparently irrelevant his offence and even if otherwise evenly matched or indeed better qualified?
So the Judges are standing up for the reformed individual, on the basis that Employers and HR departments are all too likely to cover their own backs and always chose the perhaps second rate applicant who is “clean as a whistle”
Is that what Judges are supposed to do?
It would be so much simpler, if disclosure of Criminal Records meant what the phrase means. But the Judges it seems to me are putting the law into this position, by which disclosure of practically every “border-line” criminal record will in future be at risk of expensive and time consuming argument, caused by their wish to be fair.
As noted in the case, Individual consideration of almost 4 million cases a year would, it is argued, be impracticable.” Hmmm, you think?
So where does that leave us if we want to CHECK THE RECORD? Link here, Fall fans https://www.youtube.com/watch?v=wygQmJ59E4Q
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