At present, standard and enhanced criminal record checks carried out by the Disclosure and Barring Service (DBS) reveal both spent and unspent convictions, cautions and warnings, and if someone has more than one conviction, all of their convictions (whatever their nature) will be automatically disclosed. In addition, there is a requirement that some childhood cautions must be disclosed indefinitely.

The Supreme Court found that the rules around multiple convictions and childhood cautions were disproportionate. It could not be right to disclose to an employer multiple convictions in all cases as a means of flagging a tendency to reoffend. Where there were multiple convictions for completely unrelated offences, no propensity to reoffend would be indicated and the employer would have been given knowledge of the individual’s private life which they did not need. Similarly, there was no justification for sharing with employers details of childhood cautions, the purpose of which was to instruct the child rather than to forewarn future employers.

This will have some impact on employee screening under the SMCR. Relevant firms are required to conduct standard criminal records checks for senior managers at the point of recruitment, and may well decide to conduct them for other staff affected by the regime (such as certification staff). As part of this, they would usually request a standard DBS check, which at present would automatically include multiple convictions. It remains to be seen precisely what adjustments will be made to the checking system following this decision; for example, it must of course still be appropriate to disclose multiple convictions in some circumstances where there is a genuine pattern of reoffending, and such disclosures would in some cases be necessary for relevant firms and/or the FCA to make decisions on approval and fitness and propriety. Kemp Little’s SMCR team will monitor closely the government’s proposals and those of the FCA on this matter.

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