Change to criminal record disclosure rules now in force

Changes have been made to the disclosure requirements of criminal records, following the commencement of the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020.

Youth cautions, reprimands and warnings are no longer required to be automatically disclosed on standard and enhanced criminal records checks. In addition, the ‘multiple conviction’ rule (which previously required the automatic disclosure of all convictions where an individual has more than one conviction, regardless of the nature of the offence or sentence), has now been abolished.

These changes have been made in response to the Supreme Court’s decision in the recent case of R (on the application of P) v Secretary of State for the Home Department, which ruled that the requirement to disclose these types of offences was incompatible with an individual’s right to a private life, under Article 8 of the European Convention on Human Rights.

The rules affect what employers can ask an applicant to self-disclose, as employers can only ask an individual to provide details of convictions and cautions that they are legally entitled to know about.

Schools should be mindful that, going forward, youth offences and multiple convictions will not be automatically disclosed in criminal records checks. Instead, each individual conviction will be assessed against the appropriate rules before it is disclosed. Schools should review their recruitment packs (including application forms and policies) and take appropriate advice to ensure that they are compliant with this change.

The template safer recruitment documents (available in the ISBA reference library) have been updated to take into account these changes.