Disclosure of information: minor offences

In response to the respondents’ (LG, P, G and W) submissions regarding the current scheme of disclosure under the Rehabilitation of Offenders Act 1974, as amended, and the Police Act 1997, as amended, and the corresponding legislation in Northern Ireland, the Supreme Court held that, they were in accordance with the law for the purposes of art 8 of the European Convention on Human Rights and, that the categories employed in that scheme were not disproportionate, subject to two exceptions, namely the multiple conviction rule and warnings and reprimands administered to young offenders.

Against that background, the Supreme Court dismissed: (i) the appeal brought by the Secretary of State (Northern Ireland) in the case of LG; and (ii) the appeals brought by the Secretary of State for the Home Department in the cases of P and G. However, the Supreme Court reversed the Court of Appeal, Civil Division’s judgment in W’s case on the basis that it was legitimate to include assault occasioning harm among the offences which were sufficiently serious to require disclosure.

Background

The four respondents to the present appeals (LG, P, G and W) had all been convicted or received cautions or reprimands in respect of relatively minor offending. The disclosure of their criminal records to potential employers had made, or could in future make, it more difficult for them to obtain employment. In each case, the relevant convictions and cautions had been ‘spent’ under the legislation designed for the rehabilitation of ex-offenders. They had to be disclosed only if the respondents applied for employment involving contact with children or vulnerable adults. In all four of the appeals, the respondents challenged the statutory rules under which disclosure of their records had been required as being incompatible with the European Convention on Human Rights (the Convention).

The legislation relating to disclosure of police records to potential employers was contained in the Police Act 1997 (PA 1967), and the Rehabilitation of Offenders Act 1974 (ROA 1974), as amended. In 2013, that legislation was amended (via the Police Act 1997 (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (the 1997 Act Amendment Order) and the Rehabilitation of Offenders Act (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (the 1975 Order Amendment Order) (the revised scheme) in light of the Court of Appeal, Civil Division’s decision in R (on the application of T) v Secretary of State for the Home Department [2014] 4 All ER 159 (R (T)) in which it was held that the original disclosure scheme was incompatible with art 8 of the European Convention on Human Rights (the Convention).  The revised scheme no longer required disclosure of every spent conviction or caution, but required such disclosure only in a limited set of circumstances: either where the conviction or caution was ‘current’, or was in respect of certain specified offences, or had resulted in a custodial sentence or sentence of service detention, or where the person had more than one conviction. 

In the case of W, W contended that the revised scheme was not ‘necessary in a democratic society’ because it required disclosure of his conviction for assault occasioning actual bodily harm which had occurred while he was a juvenile and for which he had received a two-year conditional discharge. In P’s case, P challenged the revised scheme insofar as it required disclosure of all spent convictions where the individual had more than one spent conviction. P had two convictions, one for theft and a second for failing to answer bail. In G’s case, G challenged the revised scheme insofar as it required disclosure of juvenile reprimands administered for an offence contrary to s 13 of the Sexual Offences Act 2003. At first-instance, W’s challenge was dismissed, but those of P and G were upheld and the cases were heard together by the Court of Appeal, Civil Division.

The Court of Appeal considered whether the revised scheme was in ‘accordance with the law’ within the meaning of art 8 of the Convention, and also whether it was ‘necessary in a democratic society’ insofar as it required disclosure of: (a) all previous convictions where there was more than one conviction; and (b) all previous convictions relating to certain specified offences. The Court of Appeal concluded that neither of those provisions was ‘in accordance with the law’ and that the operation of the scheme as presently devised could in some cases have been disproportionate, and therefore not necessary in a democratic society, and accordingly, upheld the appeals of W,P and G. The Secretary of State appealed. P cross-appealed, seeking a declaration, which the Divisional Court had refused to make, that the corresponding exclusion from s 4 of ROA 1974, which was contained in art 2A(3)(c) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order, SI 1975/1023 (as amended with effect from 2014), should be quashed. The Divisional Court had instead made a declaration that that Order could not be read down so as to be compatible with art 8. 

In the case of LG, in February 2014, LG had applied for employment at a day centre for adults with learning difficulties and had received a conditional offer of employment. In a response to disclose whether she had been convicted at any time of a criminal offence. She had disclosed ‘carrying child without sealtbelt 1996’ and ‘4 May 1996 carrying child without seatbelt fined £25’. However, she had failed to disclose a conviction she had received in 1998 for the same offence. When the enhanced criminal record certificate (EDC) disclosed all the convictions, the job offer was withdrawn on the ground that her failure to disclose them had called her honesty and integrity into question. LG brought proceedings by way of judicial review, challenging the legality of the statutory scheme in respect of EDCs, by which where there was more than one conviction, all convictions would be disclosable, regardless of their age or subject-matter (the multiple conviction rule). LG succeeded before both the High Court in Northern Ireland and the Court of Appeal of Northern Ireland. The Secretary of State (Northern Ireland) appealed. 

(1) Whether the statutory requirements in relation to the retention and disclosure of certain criminal convictions and cautions to prospective employers, as amended in 2013 by virtue of the 1997 Act Amendment Order and the 1975 Order Amendment Order, constituted a breach of art 8 of the Convention.

The respondents submitted that because the categories of disclosable conviction or caution were too wide, and not subject to individual review, the legislation did not have the quality of law.

Article 8 conferred a qualified right of privacy which was subject to important exceptions for measures which were: (i) in accordance with the law (the legality test); and (ii) necessary in a democratic society for some legitimate purpose and represented a proportionate means of achieving that purpose (the proportionality test)(see [12] of the judgment). Only if the legality test was satisfied did the question arise whether the measures in question were necessary and proportionate (see [12] of the judgment).

In relation to the legality test, R (T) was treated by the respondents as authority for the proposition that a measure could lack the quality of law even where there was no relevant discretion and the relevant rules were precise and entirely clear, if the categories requiring to be disclosed were simply too broad or insufficiently filtered. That submission could not be accepted. The rules governing the disclosure of criminal records, both by ex-offenders themselves under ROA 1974 and by the Disclosure and Barring Service and AccessNI under PA 1997, were highly prescriptive. The categories of disclosable convictions and cautions were exactly defined, and disclosure in those categories was mandatory. Within any category, there was no discretion governing what was disclosable. There was no difficulty at all in assessing the proportionality of those measures because, subject to one reservation regarding PA 1997 s 113B (which did not deprive the legislation of the quality of law), their impact on those affected was wholly foreseeable (see [37], [42] of the judgment).

The current legislation distinguished, for the purpose of disclosure, between different categories of conviction or caution, depending on the gravity of the offence, the age of the offender at the time and the number of years which had passed. Of course, there might be arguments for more or fewer, or wider or narrower categories, but the legality test was a fundamentally unsuitable instrument for assessing differences of degree of that kind. Consequently, the current scheme of disclosure under ROA 1974, as amended, and PA 1997, as amended, and the corresponding legislation in Northern Ireland, were in accordance with the law for the purposes of art 8 of the Convention (see [45] of the judgment).

R (on the application of T) v Secretary of State for the Home Department [2014] 4 All ER 159 followed; The Christian Institute v The Lord Advocate 166 NLJ 7711 followed; Sunday Times v United Kingdom (Application No 6538/74) 2 EHRR 245 considered; Silver and others v United Kingdom (Applications 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75) [1983] ECHR 5947/72 considered; Malone v United Kingdom (Application 8691/79) [1984] ECHR 8691/79 considered; Huvig v France (Application 11105/84) [1990] ECHR 11105/84 considered; Kruslin v France (Application 11801/85) [1990] ECHR 11801/85 considered; Amann v Switzerland (Application No 27798/95) [2000] ECHR 27798/95 considered; R (on the application of Gillan) v Metropolitan Police Comr [2006] 4 All ER 1041 considered; Liberty v United Kingdom (Application No 58243/00) [2008] ECHR 58243/00 considered; R (on the application of Purdy) v DPP [2009] 4 All ER 1147 considered; Gillan v United Kingdom (Application No 4158/05) 28 BHRC 420 considered; M. M. v United Kingdom (Application No 24029/07) [2012] ECHR 24029/07 considered; Catt v United Kingdom (App. No. 43514/15) [2019] ECHR 43514/15 considered.

(2) Whether the measures in question were necessary and proportionate.

In that context, the first question that required to be answered was whether the legislation could legitimately require disclosure by reference to pre-defined categories at all, as opposed to providing for a review of the circumstances of individual cases. If it could, then the second question was whether the boundaries of those categories were currently drawn in an acceptable place (see [46] of the judgment). 

Taking the relevant considerations together, they suggested that although it might be possible to abandon category-based disclosure in favour of a system which allowed for the examination of the facts of particular cases, there would be a cost in terms of protection of children and vulnerable adults, foreseeability of outcome by candidates, consistency of treatment, practicality of application, and delay and expense, without necessarily achieving much more for ex-offenders than the current system. Once it was accepted that a category-based scheme of disclosure was justifiable, it would inevitably follow that some candidates would find themselves in a category apparently more serious than the facts of their particular case really warrant (see [55] of the judgment).

On the footing that disclosure by categories was justified in principle, the respondents’ objections to the current system really amounted to saying that the balance between the risk of blighting the prospects of ex-offenders and the risk of appointing unsuitable persons to sensitive positions had been drawn in a place which put too much emphasis on the latter and not enough on the former. It was not possible to say, consistently with the proper role of a court of review, that the carefully drawn categories employed in the present scheme were disproportionate (see [61] of the judgment).

However, there were two exceptions, namely, first, the multiple conviction rule under PA 1997 ss 113A(3) and 6(b) and 113B(3) and 9(b). Unlike the other ‘relevant matters’, the multiple conviction rule did not, properly speaking define a category of offence or offender.  It applied irrespective of the nature of the offences, of their similarity, of the number of occasions involved or of the intervals of time separating them. As framed, the rule was incapable of indicating a propensity. A rule whose impact on individuals was as capricious as that could not be regarded as a necessary or proportionate way of disclosing to potential employers criminal records indicating a propensity to offend. The second exception concerned warnings and reprimands administered to young offenders under ss 65 and 66 of the Crime and Disorder Act 1998 (CDA 1998) replaced, since 2013, by youth cautions under s 66ZA. Warnings and reprimands were not a penal procedure. The inclusion of warnings and reprimands administered to a young offender among offences which had to be disclosed was a category error, and as such an error of principle (see [61]-[64] of the judgment). 

In the present case, P’s convictions and caution had been disclosable only by virtue of the multiple conviction rule. The Divisional Court had made a declaration of incompatibility in respect of that provision, which had been affirmed by the Court of Appeal. The Secretary of State’s appeal against that order had to be dismissed, albeit on grounds narrower than those of the Court of Appeal. With regard to P’s cross-appeal, the appropriate course would be simply to vary the order of the Divisional Court by adding a declaration that art 2A(3)(c) was incompatible with art 8 of the Convention (see [65], [66] of the judgment).

LG’s case had also turned on the multiple convictions rule. In light of the conclusions regarding the multiple convictions rule, LG was entitled to relief because no disclosure would have been made but for PA 1997 s 113A(6)(b), as amended. Consequently, the High Court’s second order would be varied so as to limit para (a) of that declaration to art 1A(2)(c) of the 1979 Order (the only provision relevant to her case); and to delete para (b)(see [67] of the judgment).

In G’s case, the Secretary of State’s appeal would be dismissed. With regard to W, the Court of Appeal had allowed his appeal on proportionality (as well as legality) on the ground that it was ‘difficult to see how publication of this detail, 31 years on, is relevant to the risk to the public, or proportionate and necessary in a democratic society.’ That ground could not be accepted, essentially for the reason given by the High Court (Lord Kerr dissenting). It was legitimate to include assault occasioning actual bodily harm among the offences which were sufficiently serious to require disclosure. It was a violent offence which could be extremely serious. As the High Court had pointed out, it could attract an extended sentence of imprisonment. It was also legitimate not to include a temporal limit in the definition of the category of violent or sexual offences requiring disclosure. Any temporal limit would have risked the non-disclosure of the worst cases in the category (see [68], [69] of the judgment).

Animal Defenders International v United Kingdom (Application No 48876/08) 34 BHRC 137 considered.

Per curiam: ‘Hard cases like W’s must ultimately be left to the judgment of employers. I have given my reasons for believing that in the generality of cases they can and must be trusted to exercise that judgment responsibly and in accordance with the statutory guidance given to the “registered persons” who sponsor them (see [69] of the judgment).’

Decision of Court of Appeal (Civil Division) [2018] 2 All ER 794 Reversed In Part.

Decision of Court of Appeal (Northern Ireland) [2016] NICA 42 Affirmed.

Peter GJ Coll QC and Aidan Sands (instructed by Departmental Solicitors Office) for the Department of Justice for NI. 

Sir James Eadie QC, Kate Gallafent QC, Naina Patel and Christopher Knight (instructed by the Government Legal Department) for the Secretary of State for the Home Department and another.

Martin Wolfe QC and Christopher Coyle BL (instructed by McElhinney, McDaid & Co) for LG.

Hugh Southey QC and Nick Armstrong (instructed by Liberty) for P.

Tim Owen QC and Quincy Whitaker (instructed by Just for Kids Law) for G.

Alex Offer (instructed by Minton Morrill, Leeds) for W.

Caoilfhionn Gallagher QC and Jesse Nicholls (written submissions only)(instructed by Bindmans LLP) for Unlock. 

Morag Ross QC (written submissions only) (instructed by Clan Childlaw) for Community Law Advice Network. 

Neneh Munu - Barrister.