Rehabilitation and retribution: In re JR123’s application

12 November 2021 by

What happens when someone is convicted of a criminal offence and is given a custodial sentence? Sometimes, the individual will serve at least part of their sentence in prison and the remainder on licence. But, what happens after they’ve served the totality of their sentence?

Some convictions can, after a certain period of time, become “spent”. This means that anyone convicted of such offences is treated as never having been convicted of such offences. The Rehabilitation of Offenders (Northern Ireland) Order 1978 calls these people “rehabilitated persons”. However, the 1978 Order contains a large number of exceptions, so that some convictions can never become spent. JR123’s application for judicial review in the Northern Ireland High Court concerned one of these exceptions: sentences longer than 30 months.

Readers of this blog may be familiar with the changes in disclosure duties for criminal convictions which came about as a result of the cases of Gallagher, P, G & W v Home Secretary [2019] UKSC 3 (see Samuel March’s post on this topic). JR123 looks at another aspect of the framework of rehabilitation: the ability to be rehabilitated in law at all.

The facts

JR123 had been convicted of possession of a petrol bomb, arson, burglary and theft in 1980. Having been given multiple custodial sentences, he had been released from custody in 1982 and had served the remainder of his sentences on license. In the years which followed, JR123 had no further involvement with the criminal justice system. However, given the exceptions in the 1978 Order, his convictions could never be spent and thus he could never be rehabilitated. This was problematic on multiple fronts, particularly his employment prospects and personal life. Many things which we take for granted, for example applying for insurance, obtaining a mortgage, renting properties, and so on, become considerably difficult when having to disclose convictions which are almost 40 years old ([14]).

Mr Justice Colton observed of JR123: “He finds the process of repeatedly having to disclose the convictions to be oppressive and shaming” ([6]).

The law

The law of rehabilitation in Northern Ireland has not kept pace with legal reform in England and Wales and in Scotland. In England and Wales, reforms in 2012 expanded the rehabilitation regime and shortened the rehabilitation periods. Similar legal reform took place in Scotland, bringing its rehabilitation regime broadly in line with the England and Wales reforms. The Police, Crime, Sentencing and Courts Bill currently in the House of Lords would reform the England and Wales framework further, providing for certain sentences of over 4 years to be eligible for rehabilitation. Meanwhile, the 1978 Order largely follows the rehabilitation regime as originally enacted.

JR123 challenged the 1978 Order as being in breach of his right to private and family life under Article 8 of the European Convention on Human Rights (ECHR). Asserting a right to privacy over a criminal conviction obtained after a public trial might seem counter-intuitive, but Colton J was able to point to a wealth of case law to justify such an assertion. The one authority that addresses this point directly is R(L) v Metropolitan Police [2009] UKSC 3, where Lord Hope succinctly observed that, as publicly available information about a person’s notoriety “recedes into the past, it becomes part of the person’s private life which must be respected” (L, [27]).

With the engagement of Article 8 established, the next question was whether the 1978 Order interfered with it. JR123’s counsel, Hugh Southey QC described the effect of the 1978 Order in powerful words:

A regime which condemned people to suffer, like an albatross which they could never shake off, permanent adverse consequences of ancient wrongdoing notwithstanding completion of the ostensible punishment (if any) and irrespective of its continuing significance ([27]).

Colton J readily found that the 1978 Order interfered with JR123’s Article 8 rights ([28]).

This left the final question: whether the interference was proportionate. Here, matters became more complicated because of three key decisions: R(F) v Home Secretary [2010] UKSC 17, Gaughran v United Kingdom [2020] ECHR 14 and Gallagher which was mentioned at the start. The difference between F and Gaughran on the one hand and Gallagher on the other is important. In the first two cases, blanket requirements (in F, notification requirements for sexual offences with certain sentences and in Gaughran, the indefinite retention of DNA, fingerprints and photographs) were disproportionate. In Gallagher, by contrast, a blanket requirement to disclose spent convictions in certain kinds of employment was held to be proportionate. JR123 relied on the first two decisions, while the Department of Justice relied on the third decision.

Colton J followed the reasoning in F and Gaughran while distinguishing Gallagher because the factual circumstances in Gallagher (certain kinds of employment involving contact with children) were far removed from JR123, for whom the 1978 Order caught matters well beyond sensitive employment in its sweep (as explored earlier) ([83]-[87]). Ultimately, Colton J considered that an “administrative review” system could be established, so that people such as JR123 could seek to have their convictions deemed spent and thus not subject to general disclosure ([98]).

In the event, Colton J concluded that the 1978 Order was “arbitrary both in substance and effect” ([99]), invoking Lord Kerr’s sole dissent in Gallagher, that a blanket disclosure requirement, however nuanced or narrowly applied, was nevertheless disproportionate. Those who are familiar with these authorities may remember that Lord Kerr’s was also the sole dissent in Gaughran at the UK Supreme Court – and he was ultimately proved right at the Court of Human Rights in Strasbourg.

Article 6(1) of the 1978 Order was thus declared incompatible with Article 8 of the ECHR.

Discussion

Shame is a large part of living with the inability to be rehabilitated. A 2017 report published by the Centre for Youth and Criminal Justice looks at shame in detail: both in its effects on those who have gone through the criminal justice system and in the systems which reinforce shame. The stigma brought on by offending, reinforced by shaming offenders once they attempt to return to society, is rooted in retribution rather than rehabilitation. The inability to leave one’s past offending behind (no matter the context of the offending) reinforces “society’s retributive desire to punish those who transgress the moral order and so reaffirm the position of those who uphold it”, creating a divisive and exclusionary society, “eroding the social capital of those involved in offending and severely constraining their
opportunities for desistance and successful community re-integration”.

The 2017 report is a powerful reminder that, after a person completes their sentence, society and by consequence the law, has a choice in how we treat such a person. A regime cannot be called “rehabilitative” if it excludes entire groups from being rehabilitated indiscriminately. And the effects of not being rehabilitated can be drastic, affecting everything from professional interests and employment to personal relationships, mental health and recidivism tendencies.

It is important to note that the reforms in rehabilitation made in Great Britain thus far would do nothing to help JR123 – only the Police, Crime, Sentencing and Courts Bill would. However, Colton J’s judgment marks an important first step. Moreover, with the Department of Justice expecting to ready draft legislation to reform the regime in the very near future, Northern Ireland may finally have a regime that is rehabilitative in substance and not merely in form.

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