Is it right that those who apply for appointment as police constables are required to disclose every blemish on their criminal record, no matter how long in the past or minor it may be?
In a ruling of importance to every employer, the Court of Appeal has answered that question with a resounding 'yes' (R on the Application of RD v Secretary of State for Justice and Another).
The case concerned a woman who was given a police reprimand at the age of 13 for a minor shoplifting offence. She subsequently obtained a degree in criminology with the intention of joining the police. She applied to a regional police force for a post as a service support officer but, after she disclosed the reprimand – which was by then eight years in the past – her application was rejected out of hand.
She was, for good measure, told that any further application to join the police would be unlikely to succeed. Her rejection brought on a major depressive illness, but her request for the reprimand's deletion from her record was rejected. She was instead informed that the reprimand would be retained on the Police National Computer until she reached the age of 100.
After she launched proceedings, the High Court found that, by virtue of rehabilitation of offenders legislation, the reprimand was 'spent' the moment it was issued. She was thus not required to disclose it when applying for the position, which was not that of a constable. There was no appeal against those conclusions.
However, the Court went on to declare that the requirement that aspiring constables must declare every spent caution, however trivial or historical, was incompatible with the right to respect for privacy enshrined in Article 8 of the European Convention on Human Rights. The Secretaries of State for Justice and the Home Department challenged that declaration before the Court of Appeal.
Upholding the appeal, the Court noted that constables hold a unique position and exercise intrusive and compulsive powers over other citizens. The need to maintain public trust in their absolute integrity was paramount. A bright line rule requiring prospective constables to disclose every blot on their records, including reprimands received as a child, was necessary in a democratic society for the prevention of disorder or crime or for the protection of the rights or freedoms of others. Such a rule was proportionate and did not amount to a violation of human rights.
The Court noted that the case focused solely on the disclosure obligations of would-be constables in general. Its ruling took nothing away from the undoubted fact that the relevant force had treated the woman shabbily. Any policy that resulted in the peremptory rejection of a well-qualified candidate because of a minor reprimand received as a child would be highly unlikely to be lawful.
For advice on any employment law matter, please contact Emma-Louise Hewitt e.hewitt@sydneymitchell.co.uk 0808 166 8860.
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