Supreme Court rules on disclosure of past convictions

UPDATE: In response to the Supreme Court decision, the Government announced in July 2020 that it would change the rules relating to what needs to be disclosed on, and removed from criminal record checks. The changes came into effect on 28 November 2020.

Just checking that we keep the original date of the article and don’t put today’s date. There have been other changes to the DBS scheme but my update relates only to the changes made because of this specific case.

The government will have to consider making changes to the rules relating to criminal records disclosure following the Supreme Court’s decision that certain elements of the disclosure provisions are in breach of Article 8 of the European Convention on Human Rights, namely, the right to respect for private and family life.

The Supreme Court rejected three out of four appeals brought by the government regarding the disclosure of “spent” minor past convictions and cautions to potential employers.

In a complex judgment, the Supreme Court had to consider the two related statutory schemes governing the disclosure of criminal records, specifically, the Rehabilitation of Offenders Act 1974 (the Act) and the Disclosure and Barring Service (DBS). It also considered the extensive domestic and European case law on Article 8. At issue were two competing public interests – the rehabilitation of ex-offenders and the protection of the public against people whose past record suggests there may be an unacceptable risk in appointing them to certain sensitive roles.

In relation to all but the more serious offences, the Act provides that after the expiry of the relevant rehabilitation period (which is determined by the sentence of the court and age of the offender) the conviction is treated as “spent” and the individual is under no obligation to disclose it if asked. However, this right not to disclose does not apply if the question is asked to assess the individual’s suitability for the admission to certain professions such as law or medicine or their suitability for certain kinds of employment such as working with children or vulnerable adults. The DBS provides for three levels of criminal record checks: basic, standard and enhanced. Certain changes were made to the DBS in 2014 limiting the disclosure of convictions and cautions but “multiple convictions” still need to be disclosed.

The four individuals involved in these proceedings argued that the statutory schemes governing disclosure of criminal records operated in such a way that was inconsistent with Article 8. Although Article 8 confers a qualified/limited right to privacy, any limitation to the right must be in accordance with the law (the “legality” test) and be “necessary in a democratic society” (the “proportionality” test).

So what were the circumstances leading to the Supreme Court hearing?

• In 1996, Mrs Gallagher was convicted of one count of driving without a seatbelt and fined £10 and of three counts of carrying a child under fourteen without a seatbelt and fined £25 on each count. Two years later, she was convicted of two counts of the second offence again and fined £40 on each count. She subsequently qualified as a social carer and in 2014 applied for a position at a day centre where she would care for adults with learning difficulties. Following a disclosure request, Mrs Gallagher listed the 1996 convictions relating to her children only but not the later ones. When the enhanced criminal record certificate disclosed all the previous convictions her offer of employment was withdrawn because her failure to disclose all the convictions called into question her honesty and integrity.
• P was cautioned in 1999 after the theft of a sandwich. At the time, she was 28, homeless and suffering from severe mental health problems. Later in the year, after being convicted of the theft of a book (worth 99p) she was given a conditional discharge for both offences. P is qualified to work as a teaching assistant but despite not committing any further offences, P has been unable to find work and believes this is because of her obligation to disclose her convictions.
• In 1982, W was convicted of assault occasioning actual bodily harm (ABH). The assault took place when he was 16 and it was the result of a minor fight between a number of boys on the way home from school. W was given a conditional discharge and has not offended since. At the age of 47, W began to course to obtain a certificate in teaching English to adults, but he believes that his chances of entering full-time employment in teaching will be hindered by his previous convictions.
• In 2006, G aged 13 was arrested for sexually assaulting two younger boys. There was exceptional mitigation and the police record indicated that the acts were consensual and seemed to be in the form of “dares” and curiosity on the part of all three boys. G was not prosecuted but received two reprimands. There have been no subsequent offences. In 2011, when working as a library assistant in a local college, he was required to apply for an enhanced criminal record check because the work involved contact with children. After the application was made the police told G that they proposed to disclose the reprimands and the mitigation. G then withdrew his application and lost his job. He feels unable to apply for any job that requires a standard or enhanced criminal record check.

The individuals’ concerns were that the categories of disclosable conviction or caution were too broad and not subject to individual review. As the Supreme Court commented, the rules governing disclosure of criminal records both by ex-offenders themselves under the Act and by the DBS are highly prescriptive. The categories of disclosable convictions and cautions are exactly defined and disclosure in those categories is mandatory. There is no discretion within any category about what is disclosable. Even so, the provisions relating to disclosure were in accordance with the law for the purposes of Article 8.

Looking at the issue of proportionality, the Supreme Court identified three ways that the disclosure of criminal records of candidates for sensitive occupations could have been addressed:

• By legislating for disclosure by reference to the pre-defined categories of offence, offender or sentence in the legislation as it stands;
• By legislating for disclosure by reference to some differently drawn categories of offence, offender or sentence; or
• By legislating for disclosure by reference to the circumstances of individual cases, as ascertained by some process of administrative review.

With four million applications a year for criminal record certificates in England and Wales, the government argued that applications have to be dealt with promptly because a conditional offer of employment will often have been made to the candidate. A system of individual assessment is not practical because of the volume of disclosure applications. The Supreme Court held that disclosure by reference to pre-defined categories was justified, not only for practical reasons but because the final decision about the relevance of a conviction to an individual’s suitability for a job is the employer’s. It is the employer who is best placed to assess the individual circumstances.

Although generally, the pre-defined categories were not disproportionate, the Supreme Court held that there were two exceptions:

• The requirement to disclose multiple convictions even if they were minor was disproportionate. The aim of the provision is that the multiplicity of convictions may indicate a criminal propensity. However, the provision 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. On that basis, the rule was not an effective way of achieving the objective of indicating a criminal propensity. This decision was relevant to the cases of Mrs Gallagher and P.
• There was no distinction between warnings and reprimands to young offenders which are given when there has been no criminal proceedings and which are meant to be instructive, as opposed to actual convictions following a prosecution. The issuing of a reprimand was relevant to G.

Accordingly, the Supreme Court held that in relation to Mrs Gallagher, P and G the current criminal records system was in breach of the right to privacy and was incompatible with Article 8.

In relation to W however, ABH is a serious offence and is among the offences sufficiently serious to require disclosure. The government’s appeal in relation to W was allowed.

The ruling will add to the pressure already faced by the government to change the current system of criminal records disclosure. Interestingly, also involved in the Supreme Court case was the charity “Unlock” – which acts in the best interests of those with criminal convictions. As its co-director, Christopher Stacey said, “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”. He went on to say that, “A fair, proportionate and flexible filtering system should be developed which protects the public without unduly harming the ability of people to move forward positively with their lives”.

(R (on the application of P, G and W) (Respondents) v Secretary of State for the Home Department and another (Appellants) [2019] UKSC 3)