R (QSA and others) v Secretary of State for the Home Dept and Secretary of State for Justice  EWHC 407 (Admin) – read judgment
The High Court ruled on 2nd March 2018 that three women forced into prostitution as teenagers will no longer have to disclose related convictions to potential employers.
The claimants challenged the criminal record disclosure scheme which required them to reveal details of multiple decades-old convictions for ‘loitering or soliciting’ for the purposes of prostitution.
The women had been groomed, coerced or forced into sex work, two of them when they were children. They were required to divulge their convictions under the regime of the DBS (Disclosure and Barring Service) governed by Part V of the Police Act 1997. DBS checks (previously CRB checks) are made when an applicant seeks certain paid or voluntary work involving children or vulnerable adults. While the claimants weren’t strictly barred from such jobs, they had to inform would-be employers of their historical convictions. They said this placed them at an unfair disadvantage, caused embarrassment and put them off applying in the first place. They argued that this interference with their private and working lives was unjustified by the scheme’s aims and unlawful. The Court agreed.
The Court’s factual summary is a sad read. The first claimant (“C1”) was forced into prostitution when she was only 14 and under a care order. Her first conviction was for soliciting at the age of 16, and the last was eight years later, in 1998.
The second claimant, Fiona Broadfoot, waived her right to anonymity and is an active campaigner against sexual exploitation. She was 15 years old when coerced into sex work, and her convictions date between around 1984 and 1988.
The third claimant (“C3”) was groomed into prostitution aged 18 and first convicted aged 21. Her last offence was in 1992.
Lord Justice Holroyde and Mrs Justice Nicola Davies both contributed to the judgment, which noted at the outset that C1 and Ms Broadfoot were themselves victims of crime; they were underage when procured to have sexual intercourse with others. Having considered their evidence, the Court also had “no difficulty in accepting that all three claimants have, even as adults, been victims in many other ways”.
The Court noted that “greatly to their credit”, the women escaped prostitution many years ago. Nonetheless, they did so with considerable criminal records – over 100 offences between them. While the penalties were comparatively minor, in most cases being fines, their effect resonated throughout their lives. Ms Broadfoot, in an interview with BuzzFeed News last August, spoke of the “humiliating” effects of her convictions:
I couldn’t get on a university degree, a social work degree, I couldn’t get into child development at college. They said I could get on to the course but I wouldn’t be able to find a placement because of my criminal record.
I’ve been discriminated against in my workplace – I wouldn’t even apply for some jobs. I wanted to be on the PTA at my son’s school and I had to tell the headteacher, it was really embarrassing.
The legal background
The claimants’ convictions were under Section 1 of the Street Offences Act 1959: ‘Loitering or soliciting for purposes of prostitution.’
At the time, the common law restricted the offence to women. The law was amended to include men, but evidence showed that in the decade following amendment, 95% of those convicted or cautioned were female. This is relevant because – as we will see – the claimants argued that the disclosure scheme amounted to unlawful sex discrimination.
The Rehabilitation of Offenders Act 1974 introduced the concept of convictions (and later cautions) becoming ‘spent’ after a specified period. After that time passed, a person wouldn’t have to disclose convictions. However, the 1974 Act is subject to ‘exceptions orders’ made by the Secretary of State for Justice. Under the 1975 exceptions order, people applying to work with vulnerable adults and in children and family services still had to disclose otherwise ‘spent’ convictions. Similar provisions in the Police Act 1997 also require disclose of otherwise “spent” convictions in certain cases.
The scheme described above was considered by the Supreme Court in R (T) v Chief Constable of Greater Manchester Police  AC 49 (“T”). Those claimants had cautions or warnings for very minor offences at a young age, and challenged the lawfulness of the scheme which continued to require their disclosure. They argued that it unlawfully interfered with their right to a private and family life, as protected by Article 8 of the European Convention on Human Rights (“ECHR”). As summarised at para 37 of the judgment in this case, the Supreme Court in T agreed, holding that:
… the statutory provisions were not in accordance with the law because they contained no safeguards against arbitrary interferences with Article 8 rights. It was further held that, although it was necessary to check that persons wishing to work with children or vulnerable adults did not present an unacceptable risk to them, the disclosures required by Part V of PA 1997 were not based on any rational assessment of risk and so failed the test of being necessary in a democratic society.
The scheme changed in 2013 to remedy the defects identified in T. Amendments provided that even in relation to work with vulnerable groups, certain listed spent convictions not resulting in imprisonment don’t have to be disclosed. To benefit from this exception, a person must have “not been convicted of any other offence at any time”. In short, only those with single convictions could resist disclosure. The claimants in this case, however, were all caught by what the Court called the “multiple conviction rule.”
The multiple conviction rule was considered by the Court of Appeal in R (on the application of P and others) v Secretary of State for the Home Department  EWCA Civ 321 (“P”). Sir Brian Leveson, with whom the other Lord Justices agreed, held that the defect identified in T had not been remedied, see para 44:
The multiple conviction rule is indiscriminate in that it applies without consideration of any of the features identified by Lord Reed [in T]. If an individual has been convicted of more than one offence, the rule will apply automatically irrespective of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought. Therefore, in my view, Lord Reed would conclude that it is not ‘in accordance with the law’, unless there is a mechanism for independent review.
There is a pending appeal to the Supreme Court in the case of P, to be heard later in 2018 alongside a Northern Irish case dealing with similar provisions.
The Court’s decision
The claimants argued that the scheme described above is unlawful as it stands. They advanced seven grounds of challenge initially, later abandoning one.
The disclosure scheme violates Article 8 (Ground 1)
The claim succeeded on this ground only. The Court noted that it was bound by P to conclude that the statutory scheme was “not in accordance with the law, because the multiple conviction rule operates in the indiscriminate, and hence arbitrary, manner summarised at paragraph 44 of P”. Further, the Court held at para 56:
We would have reached the same conclusion even if not bound by P, in particular because the facts of this case vividly illustrate the fact that the multiple conviction rule operates in circumstances in which any link between the past offending, and the assessment of present risk in a particular employment, is either non-existent or at best extremely tenuous.
The disclosure scheme as it stands interferes with the claimants’ Article 8 rights arbitrarily, bearing “no, or very little, relationship to the aim of safeguarding children and vulnerable adults” (para 58). In fact, the Court found that scheme may work against that safeguarding aim. First, it could exclude people like them from working with and helping vulnerable people; their experiences, drawn from “a school of very hard knocks”, might be an asset and not a detriment in some professions, and secondly, because an inability to enter certain work may cause vulnerable people to remain in prostitution when they wish to leave (para 59).
The Court found that it was not sufficient justification that an employer could decide whether or not the disclosed convictions render the applicant unsuitable, that was not information employers should, or needed to, know in the first place. The Court also recognised that the claimants had not only suffered an employment disadvantage, that they had also been embarrassed and stigmatised by the requirement to release very personal information, whether or not they were eventually taken on as an employee.
However, it is not for the Court to change the law – that task is left to the legislature:
62. In our view, it should be and is possible for Parliament to devise a scheme which more fairly balances the public interest with the rights of an individual applicant for employment in relevant areas of work. It may be that only broad lines can be drawn to act by way of filter before the employer is left to assess the risk. But that is not a good reason for adopting the blanket approach which the present schemes adopt in widely-differing circumstances. As was said in P, it is not for the court to devise a scheme.
Ground 2 repeated in large part ground 1, but added that there was no evidence that convictions for soliciting could be an indicator of present risk to vulnerable people. Considering the decision on ground 1, ground 2 was ‘otiose’ and therefore failed, but the Court commented that there was nothing inherently unlawful about minor offending giving rise to disclosure obligations.
The disclosure scheme unlawfully discriminates against women (Ground 3)
The claimants relied on Article 14 ECHR alongside Article 8. Article 14 must be combined with another right, and provides that the other convention rights must be protected in a way which does not discriminate on the grounds of, amongst other things, gender.
The Court accepted that Article 14 was engaged, and that a “disproportionately high percentage of women commit the offence of soliciting” and have multiple convictions for that offence, and that significantly more women than men apply for jobs which DBS checks are required.
However, prostitution-related offences were not to be “viewed in isolation” – in general, men commit more crimes than women. Both genders are affected by the multiple conviction rule, in fact, it affects more men than women. There is a sound justification for the general operation of the rule and so far as gender discrimination is concerned, the scheme is a proportionate means of achieving legitimate aims.
Forced labour and trafficking (ground 4)
The claimants argued that the disclosure scheme violates Article 4 ECHR, which prohibits slavery and forced labour, and an EU Directive on preventing trafficking, which requires among other things that member states do not penalise trafficked people (2011/36/EU). They submitted that the scheme penalises victims of trafficking and violates the right to anonymity for victims of trafficking.
However, the Court held that disclosing a ‘soliciting’ offence does not of itself indicate that the offender was a victim of trafficking, and that the claimants’ submission untenably stretched the meaning of “penalty”.
Retention of convictions data (ground 5)
This ground alleged that the recording and/or retention of information concerning prostitution-related convictions and cautions, regardless of whether it is disclosed, violated Article 4 and/or Article 8 and/or Article 14 (with Article 8) ECHR.
The court rejected this, holding that there was only very limited interference with individual rights when a state retains but does not disclose records, which was plainly justified in the public interest.
The criminalisation of women in prostitution is itself unlawful (Ground 7)
The claimants’ most ambitious ground effectively argued that criminalising women in prostitution amounts to unlawful gender discrimination. They argued that the criminalisation of conduct within the scope of s.1 of the Street Offences Act 1959 (soliciting and loitering) overwhelmingly affects women. They form the vast majority of those convicted of the offence and are, they argued, disproportionately and unlawfully prejudiced by the provision. The claimants relied on numerous international instruments, including a UN Committee on the Elimination of Discrimination Against Women (“CEDAW”) recommendation endorsing the repeal of legislation criminalising women in prostitution.
The Court dealt with this ground shortly – describing it as a “very bold submission [with…] no arguable basis” and noting that “the claimants’ case based on gender discrimination – on which the ground depends – has failed. Not all who commit offences of soliciting have been coerced or trafficked.” (para 124)
The author respectfully disagrees that this ground depended on the Court’s conclusions on ground 3, or on the question of trafficking or forced labour (ground 4). Both of those arguments sought to impugn the disclosure scheme. This broader ground apparently did not address itself to that scheme at all, but directly to the criminal offence at the heart of the case. That offence does disproportionately affect women, and the Court had already accepted that Article 14 was engaged.
Notwithstanding that, there was force in the Defendant’s arguments that the ground sought a remedy not open to the claimants: they were convicted under a previous version of the offence, not the one they were now challenging.
In determining this ground, the Court focused on the limits of its constitutional role and found that the claimants had not shown requisite “very compelling reasons” for interfering with the Parliament’s role in the creation and regulation of crimes (see the speeches of Lord Bingham and Lord Mance R v Jones  UKHL 16). Permission was refused:
It is for Parliament to determine the ambit of the criminal law (para 125).
The claimants have stated in the press that they will seek permission to appeal the ‘broader points’ of whether the scheme discriminates against women, or is contrary to the state’s duties to trafficked women.
The Court has made it clear, in respect of ground one, that the disclosure scheme is unlawful as it stands. It is for Parliament to make the next move.
Both sides will keenly be awaiting the decision in the pending Supreme Court appeal in the case of P, and the UK Human Rights Blog will keep its readers up to date with any developments in this interesting area.
Jo Moore is a barrister at One Crown Office Row.