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Judges at the Court of Appeal have ruled that CRB checks are ‘incompatible’ with the Human Rights Act:

The Government is to appeal this decision but it would appear to arise from what Liberty (the Human Rights campaigning group) describe as an “overzealous CRB system [that] has allowed old, minor and unreliable information to wreck the lives of too many”.

The Court of Appeal has ruled that the current system which requires the blanket disclosure of criminal convictions, cautions and warnings, is disproportionate and incompatible with the right to a private and family life.

Employers should react to this ruling with care. It is already open to an employer to judge a criminal disclosure intelligently. The risk can be assessed. Is the crime relevant, how serious was it, is the crime likely to be an indicator of current behaviour? A middle aged man cautioned for trespassing on government property as a teenager can be viewed rather differently from a similar man convicted of grievous bodily harm just a few years ago.

Following the Ian Huntley affair all parties are playing it safe. Everything is disclosed and employers, legitimately, ask themselves why take the risk if something could back-fire?

Balance and judgement goes out of the window and prescription and tick boxes replace it.

Employers need to feel comfortable that CRB checks (now to be called Disclosure and Barring Service checks – DBS) can be interpreted sensibly. In which case why not have everything on the table and make clear via Courts and Tribunals that employers can make reasonable judgements safely?

In the meantime there is doubt thrown on the system; disclosures will have to be “proportionate to a legitimate aim”. If a DBS check is not to contain everything, then what is proportionate to the legitimate aim? On the face of it the DBS will need to know the employer’s legitimate aim before it can decide what is proportionate to disclose – and all this when the DBS check is now to be portable i.e. carried by the employee from one employer to another.

So if the Government’s appeal fails then that will be an interesting problem for the DBS.