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Legal update 1920: 20/9/19 – Safeguarding: Criminal records: Spent convictions; acquittals; right to be forgotten

SAFEGUARDING (2): Disclosure of spent convictions; acquittals; right to be forgotten

Two recent supreme court decisions – on disclosure of old, minor or youthful convictions and disclosure of acquittals – have involved balancing an individual’s right to privacy when applying for employment, against the use of criminal record checks to protect public safety. Another decision, by a lower court, looked at the right of whether Google could be required to remove spent convictions from their search

 

REHABILITATION PERIODS AND DISCLOSURE OF SPENT CONVICTIONS

The Ministry of Justice announced on 15 July 2019 that it is proposing to change some rules on when convictions become spent, and thus no longer have to be disclosed to employers or potential employers unless the role is excepted (for example working with children, and adults who are or could be vulnerable). The proposed changes will not apply for serious se*ual, violent and terrorism offences and other offences with the most serious sentences, and will not apply if the person re-offends during their rehabilitation period.

 

There are three proposed changes.

The Ministry of Justice’s stated objective in introducing these changes is to help ex-offenders gain employment. But the underlying reason is a supreme court decision on 30 January 2019, which said that mandatory disclosure of all convictions, even when spent, is disproportionate and incompatible with an individual’s right to a private life under article 8 of the European Convention on Human Rights (ECHR), as is mandatory disclosure of youth cautions (including what used to be called warnings and reprimands).

A previous decision by the court of appeal in 2013 led to the introduction of “filtering”, under which a conviction was no longer included in criminal record checks if it was not for a se*ual, violent, safeguarding or similar offence; it did not result in a custodial sentence; a specified period had elapsed since the date of conviction; and – importantly – it was the person’s only offence. That final condition – that if a person has more than one offence, no matter how minor and no matter how long ago, all offences are included on a criminal record check and have to be declared if asked – led to a series of challenges and ultimately the supreme court decision in January 2019.

The supreme court heard four cases where the disclosure of old, apparently minor offences had led to the person not being employed, or concerned that they would not be employed.

The supreme court said the multiple convictions rule is disproportionate, and thus incompatible with the ECHR, in two ways.

However, in relation to W’s case, assault occasioning actual bodily harm, the court said it may be a serious offence and it was appropriate to include it within the category of offences requiring disclosure.

The supreme court’s declaration of incompatibility with article 8 of the European Convention on Human Rights does not in itself change anything. It is up to Parliament to decide whether and how to change the law so it is compatible.

In the meantime, the Ministry of justice has said it will consult with stakeholders later this year prior to drawing up detailed proposals to amend rehabilitation periods for non-custodial custodial and shorter custodial sentences. For custodial sentences of more than four years, and in particular how any new rules would apply to sensitive roles including with children and vulnerable adults, the MoJ says the government will issue a response to the supreme court decision later this year.

In case you are wondering about the impact of Brexit: the European Convention on Human Rights is a product of the Council of Europe, not the EU. Even after withdrawing from the EU, the UK will still be a member of the Council of Europe and will still be subject to the ECHR.

Resources about the supreme court case and proposed changes

 

Quick background if you are unclear about unspent and spent convictions etc

The Rehabilitation of Offenders Act 1974, covering England, Wales and Scotland, and the Rehabilitation of Offenders (Northern Ireland) Order 1978 set out rehabilitation periods during which a conviction or youth caution is said to be unspent. After this period, it is said to be spent. Although the basic principles are the same, rehabilitation periods in Scotland and NI are different from those in England and Wales – for the differences, see the Nacro publication under Resources, below. Different rules also apply in immigration and nationality cases.

For work (whether paid or unpaid) with children or with adults in vulnerable circumstances, or for certain financial, legal and other roles set out in exception orders, all convictions have to be disclosed, whether spent or unspent, and will be shown in standard and enhanced checks. Police cautions and other police information are shown in enhanced checks. Excepted roles are listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and a series of amendments (since 2003, the amendments have been separate for England and Wales, and for Scotland). For Northern Ireland, the exceptions are in the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 and a series of amendments.

Custodial sentences over four years and convictions for the most serious offences never become spent, so always have to be declared for any type of work. For roles which are not listed in exception orders, only unspent convictions (those which are still “live”) generally have to be disclosed, and only if the employer asks about them. For these “ordinary” jobs (not working with children etc), a spent conviction in effect never happened and does not need to be revealed, even if the employer asks about convictions. But if a person has two or more convictions, all of them – even if some or all were spent – have to be disclosed,  and have to be declared by the individual if asked. The supreme court decisions is likely to lead to some changes in this.

Rehabilitation periods (the period while the conviction remains unspent) were changed in 2014. Since then they have been the period of the sentence plus a buffer period following the end of the sentence. For example the rehabilitation period for a person who receives a custodial sentence of 6-30 months is the period of the sentence plus a four-year buffer period if aged 18 or over at the time of conviction, or a two-year buffer period if under 18 at the time of conviction. So for an adult, the rehabilitation period for a custodial sentence of 6-30 months could be as short as 4.5 years (for a six-month sentence plus four-year buffer period), and even at its longest would only be 6.5 years (for a 30-month sentence plus four-year buffer period).

Resources

 

 

DISCLOSURE OF ACQUITTALS

Old, minor or youthful convictions on criminal record certificates are one thing [see above], but what about an acquittal? In a decision handed down on 30 July 2018, the supreme court unanimously agreed that it was correct for the police to disclose information about an acquittal for r*pe on an enhanced criminal record check, where the chief constable of the relevant police force believes it “ought to be included in the certificate”.

In this case AR, a qualified teacher who was working as taxi driver, was accused of r*ping a 17-year-old passenger. He said there had been no se*ual contact and was acquitted by a crown court, but when he applied for a job as a lecturer, his enhanced certificate included details of the r*pe charge and acquittal. The same details were disclosed when be applied for a job as a taxi driver. He challenged the disclosures on the basis that he had not been convicted; the certificate did not include a full account of the evidence and how the jury had reached its conclusion; and this breached his right to a private life under article 8 of the European Convention on Human Rights (ECHR).

Delivering the judgment that it was appropriate for the acquittal to be disclosed, Lord Carnforth said, “In principle, even acquittal by a criminal court following a full trial can be said to imply no more than that the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that.”

The supreme court did not, of course, look at whether they thought the crown court was right in acquitting the person; it was only looking at the legal issues in the police chief’s decision to include information about the charge and acquittal on an enhanced certificate.

But, Lord Carnforth said, disclosure of the acquittal leaves open “a danger that the employer will infer that the disclosure would not have been made unless the chief officer had formed a view of likely guilt”, even if the information on the criminal record certificate was expressed in neutral terms. Reports shown to the court had emphasised the importance of someone who had been convicted not being excluded from employment – but, Lord Carnforth said, the reports said nothing about those who had been acquitted, “who surely deserve greater protection from unfair stigmatisation”. He expressed concern that statutory guidelines on disclosure did not refer to acquittals, leaving employers unclear about how to assess such information when it was presented.

Much as we might like to believe that juries always make the right decision about guilt “beyond reasonable doubt” or innocence, we know they sometimes get it very wrong. This case raises important issues about the right of someone who has been acquitted, even of a very serious offence, and is genuinely innocent to get on with their life; the basis on which a police chief, responsible for protecting the public, decides whether there might still be enough concern to include the acquittal in an enhanced criminal record check for work with young people or as a taxi driver; and the basis on which an employer, responsible for protecting the people with whom this potential employee or volunteer will come in contact, decides whether to accept the acquittal or believe there is too much risk of possible guilt.

Resources

Court allows police to reveal acquittals during record checks. Guardian, 30 July 2018: http://tinyurl.com/y44c89xx.

Acquittals and enhanced criminal record certificates. Stone King solicitors, 24 September 2018: http://tinyurl.com/y22xh2xs.

Teacher acquitted of r*pe loses enhanced criminal record check appeal. Irwin Mitchell solicitors, 22 August 2018: http://tinyurl.com/y2fc5vgk.

R (AR) v Chief Constable of Greater Manchester Police & another [2018] UKSC 47. Supreme court, 30 July 2018: https://www.supremecourt.uk/cases/uksc-2016-0144.html. Links to press summary; judgment in PDF & HTML; and videos of hearings and case summary.

 

SPENT CONVICTIONS AND THE RIGHT TO BE FORGOTTEN

The high court, giving its first decision on the “right to be forgotten” on 13 April 2018, ordered Google to delist search results referring to the spent conviction of a businessman known as NT2, but rejected a similar request made by another businessman, NT1.  The claimants, who were unknown to each other, had been convicted of criminal offences many years ago and complained that search results returned by Google that featured links to third-party reports about the convictions were inaccurate and/or old, irrelevant and of no public interest, or otherwise an illegitimate interference with their rights.

The claims were made under data protection law and the law on misuse of private information. The court rejected NT1’s request based on the fact that he was a public figure with a role in public life so that the crime and its punishment could not be considered of a private nature, but was regarded as a matter of public interest, specifically a business crime, its prosecution and punishment.  Moreover the court said that NT1  had not accepted his guilt, had misled the public and the court, and shown no remorse. In contrast, the court upheld NT2’s  delisting claim, reasoning that his crime did not involve dishonesty, his punishment had been based on a plea of guilt, and information about the crime and its punishment had become out of date, irrelevant and of no sufficient legitimate interest to users of Google to justify its continued availability.

The court granted NT1 permission to appeal: “It is quite likely that there will be more claims of this kind, and the fact that NT2 has succeeded is likely to reinforce that,” the judge said.

At the time of writing (18 September 2019) I am not aware of any appeal.

Resources

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