A criminal record, or a clean slate?

4 February 2019 by

The Supreme Court has upheld challenges to the legal regimes for disclosing criminal records in England and Wales, and Northern Ireland, finding them to be incompatible with Article 8 of the European Convention on Human Rights (“ECHR”).

R (P, G and W) and Anor v Secretary of State for the Home Department and Anor [2019] UKSC 3 – Read Judgment

Having a criminal record is a serious matter. It impacts upon the way you are treated by the criminal justice system (in particular in relation to sentencing), and upon the way you are treated by society at large. It can disrupt travel, make it harder to obtain employment, and of course, it can be a social stigma.

These consequences are part of the justification for having a system of criminal records, in that they form part of the package of disincentives which society uses to dissuade would-be criminals. Furthermore, in the employment context, a regime facilitating the collection, retention and disclosure of information about criminal activities is an indispensable facet of public protection, particularly in relation to roles involving contact with children and vulnerable people.

At what point, however, does such a regime become unduly oppressive? In a digital age where rights to protection of information and privacy, and the “right to be forgotten”, are increasingly attracting popular attention and debate, when does disclosure of a criminal past become a disproportionate interference with a person’s right to respect for his or her private life under Article 8 of the ECHR? That was the core question being considered by the Supreme Court in this case.

It involved four individuals who had all been convicted or received cautions or reprimands for minor offending. To take perhaps the most striking example, in 1999 an individual identified in the proceedings as “P” received a caution for stealing a sandwich from a shop. Later in the same year, she was convicted of stealing a book worth 99 pence, and when she failed to surrender to the bail granted for the theft offence, was convicted a second time. At the time, she was homeless and suffering from undiagnosed schizophrenia. With later treatment, P got her mental illness under control, and trained and qualified as a teaching assistant. However, she was encountering persistent difficulties in obtaining employment, which she believed was due to her legal obligation to disclose her convictions. This requirement arose because the legislation mandated full disclosure when there was more than one conviction on someone’s criminal record. Such disclosure also placed on her the added burden of feeling the need to explain her convictions by reference to her past schizophrenia.

The Supreme Court was examining two legislative schemes for the disclosure of criminal records. The first exists under the Rehabilitation of Offenders Act 1974 (with corresponding provisions in Northern Ireland under the Rehabilitation of Offenders (Northern Ireland) Order 1978), by which individuals are required, when asked, to disclose previous convictions or offences in certain circumstances laid out in legislation. The second is the Disclosure and Barring Service (and the equivalent “AccessNI” system in Northern Ireland), which pursuant to the Police Act 1997 establishes a system whereby Criminal Record Certificates and Enhanced Criminal Record Certificates are issued for the benefit of, inter alia, employers, and the legislation provides for the mandatory disclosure of all convictions and cautions on a person’s record if certain conditions are met. A nice succinct exposition of the technical legislative details can be found in the Supreme Court’s press summary.

The leading judgment for the majority was given by Lord Sumption, with a concurring judgment delivered by Lady Hale. The judgments are interesting because, although they address the highly technical details of the disclosure legislation, they also engage with some important points of principle in relation to parts of the ECHR’s text which doesn’t always get a lot of attention.

The text for Article 8, which is a qualified right, provides as follows:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In cases where it is established that someone’s right under Article 8(1) has been interfered with in some way, the scrutiny of that interference most frequently focusses on whether it is “necessary in a democratic society” in the interests of national security, public safety and/or the other fundamental interests identified in the text. In other words, the focus of the analysis is usually the question of proportionality.

The fact that an interference with a qualified human right must also be “in accordance with the law” doesn’t usually get much air time. That’s because human rights challenges are targeted at actions of the State and its officials, who will (or ought to be!) acting in accordance with legal powers that have been granted to them by Parliament or the common law. So, for example, officials at the Home Office make many thousands of decisions each year which interfere with people’s private or family lives, and many of those decisions are challenged under Article 8. But most of those challenges argue that the adverse decision contravenes Article 8 because it is disproportionate. It is rarer for an immigration decision to be challenged as not being in accordance with the law, since officials will be taking their decisions pursuant to a very detailed suite of primary and secondary legislation, and of course the Immigration Rules.

So, this case is noteworthy because it was in fact argued (successfully) in the courts below that the legislative regimes for disclosing criminal records were not “in accordance with the law”, and declarations of incompatibility were upheld in the Court of Appeal on that basis. The issue was then given detailed consideration by the Supreme Court, and on this issue it actually disagreed with the Court of Appeal.

Lord Sumption examined the point based on a detailed review of the relevant case law at paragraphs 14 – 45 of his judgment. He explained that, as made clear in the authorities, being “in accordance with the law” is not simply a matter of being able to point to a piece of legislation which underpins the action at issue. It is a qualitative question with two requirements intimately linked with the fundamental principle of Rule of Law:

  1. The law must be reasonably accessible; and
  2. Its application must be reasonably foreseeable.

A nice summary of the meaning of these requirements in the context of criminal law provisions was provided by Lord Hope in R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345, at paragraph 41:

Accessibility means that an individual must know from the wording of the relevant provision and, if need be, with the assistance of the court’s interpretation of it what acts and omissions will make him criminally liable: see also Gülmez v Turkey (Application No 16330/02) (unreported) given 20 May 2008, para 49. The requirement of foreseeability will be satisfied where the person concerned is able to foresee, if need be with appropriate legal advice, the consequences which a given action may entail. A law which confers a discretion is not in itself inconsistent with this requirement, provided the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against interference which is arbitrary: Goodwin v United Kingdom (1996) 22 EHRR 123 , para 31; Sorvisto v Finland , para 112.

As referenced in that quote, where courts have been called upon to consider whether or not a measure is in accordance with law, it has frequently involved consideration as to whether a legally conferred discretion is so wide in its terms that it is insufficiently foreseeable in its application. But in this case, as Lord Sumption explained at paragraph 42:

The rules governing the disclosure of criminal records, both by ex-offenders themselves under the Rehabilitation of Offenders Act 1974 and by the Disclosure and Barring Service and AccessNI under the Police Act 1997, are highly prescriptive. The categories of disclosable convictions and cautions are exactly defined, and disclosure in these categories is mandatory. Within any category, there is no discretion governing what is disclosable. There is no difficulty at all in assessing the proportionality of these measures because…their impact on those affected is wholly foreseeable.

Nevertheless, it had been argued for the Respondents in the appeal (those whose records were subject to disclosure) that the system failed the test for legality even though there was no discretion, because the categories of offence requiring disclosure were simply too broad. That was rejected by the Supreme Court’s majority as being based upon a misreading of earlier authorities, in particular R (T) v Chief Constable of Greater Manchester Police [2015] AC 49. The regime for disclosure was accessible and clear in its operation. Thus, it was “in accordance with the law” for the purposes of Article 8, and the real question was whether or not such a prescriptive regime was proportionate, in view of the lack of discretion in the way it operated, leading to the automatic disclosure of convictions like those of P.

Lord Sumption began to address this issue by considering the question of whether, in principle, the legal regime could be proportionate where it required disclosure by reference to pre-defined categories, rather than providing for a review of the circumstances of individual cases, which might have avoided the difficulties that P and the other Respondents encountered.

That question was answered in the affirmative, even though it might sometimes result in arguably unfair results in an individual case. Lord Sumption decided that there were four good reasons why a category-based system was appropriate in the context of criminal record disclosure:

  1. The final decision about the relevance of a conviction to an individual’s suitability for some occupations should be that of the employer i.e. individual assessment by an arms-length official was of limited use in this context.
  2. There was very limited empirical evidence that employers did not take a sensible or objective view of the information that was disclosed to them.
  3. It was necessary for legal certainty, particularly in respect of the regime under the Rehabilitation of Offenders Act 1974, which required individuals to voluntarily disclose their convictions when asked. In practical terms, there was no room for review by an official in those circumstances, and individuals need certainty as to what their obligations are in order to avoid contravening the law.
  4. It was necessary as a matter of practicality. Lord Sumption noted that some four million applications for criminal record certificates are made every year in England and Wales, which needed to be dealt with promptly if the system was to be of any value to the workplace.

Having determined the question of principle in that way, it only remained to consider whether the lines defining the categories of disclosure had been drawn to achieve a proportionate result. And it was here that the regime was found to be flawed, although only in two specific and limited respects.

First, the majority decided that it was disproportionate for the law to require that all offences were disclosed in every case in which there was more than one conviction. The idea behind the requirement is that multiple convictions can indicate a level of propensity to offend of which employers ought to be aware. However, as the court noted, someone could have two extremely minor convictions, or two convictions separated by a long gap in time. The requirement was therefore not fit for purpose, and had disproportionate results, as in the case of P.

Second, the court concluded that the requirement that warnings and reprimands of young people (now cautions under section 66ZA of the Crime and Disorder Act 1998) had to be disclosed was incompatible with the purpose of the regime of youth cautions, which was rehabilitative rather than penal.

And so, the result reached by the Court of Appeal was upheld, but on the narrower basis of proportionality, rather than legality. It also led to the conclusion that in one case – “W” –  the disclosure of his conviction for assault occasioning actual bodily harm would not in breach of article 8. In that particular case, W was convicted as a result of a schoolboy fight when he was 16 years old, in 1982. The age of the conviction, and the circumstances of the offence, made it arguably unfair to require disclosure in his particular case, but it was not unlawful under Article 8, because the court had determined that it was proportionate to require disclosure of the category of convictions for assault occasioning actual bodily– even if that led to harsh results in certain individual cases.

Notwithstanding the comparatively narrow basis of the decision, which was carefully circumscribed, reaction to the ruling seems to have been mostly positive. Christopher Stacey, co-director of Unlock, a charity working with people with convictions, said:

We welcome today’s judgment by the Supreme Court. Unlock intervened in this vital case to help the court understand the importance of the issues. We are pleased the court has ruled that two aspects of the criminal records disclosure scheme are disproportionate and in breach of Article 8 of the European Convention on Human Rights; in particular, the blanket rules which require the automatic disclosure of all convictions where a person has more than one conviction, and the requirement that some childhood cautions be disclosed indefinitely. This is an important ruling which stands to affect many thousands of people with old and minor criminal records who have been unnecessarily anchored to their past.

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