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.
- Rehabilitation periods for custodial sentences under four years and non-custodial sentences would be reduced, so the convictions become spent more quickly.
- At present, custodial sentences over four years never become spent, and another change would introduce rehabilitation periods for some of these, enabling them to become spent.
- At present, if a person has two or more convictions, all of them – even if some or all are decades old and became spent long ago – are included on standard and enhanced criminal record checks, and have to be declared by the individual if they are asked about convictions. Under the proposed changes, a person who re-offends would have to disclose the previous conviction(s) – and the previous convictions would be shown on standard and enhanced checks – only if the new offence occurred during the rehabilitation period.
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.
- Ms Gallagher was convicted in 1996 of one count of driving without a seatbelt, for which she was fined £10, and three counts of carrying a child under 14 without a seatbelt, for which she was fined £25 on each count; and in 1998 was convicted of two counts of carrying a child without a seatbelt and fined £40 on each count. She had no further convictions, trained as a social worker, and in 2014 was conditionally offered a job working with adults with learning difficulties. She disclosed some but not all of those convictions, but when the enhanced criminal record certificate came back showing all of them, the job offer was withdrawn.
- In 1999 P, who was 28 years old, homeless, and with undiagnosed schizophrenia, received a caution for theft of a sandwich from a shop and the same year was convicted of theft of a 99p book and failing to surrender to the bail granted to her after her arrest for that offence. She received a conditional discharge for both offences. She had no further offences, her mental health condition was under control, and she qualified as a teaching assistant. She told the court she believed the disclosure obligations had prevented her obtaining employment.
- In 1982 W, then aged 16, was involved in a fight between a group of boys on their way home from school, was convicted of assault occasioning actual bodily harm and given a conditional discharge, and had no further offences. In 2013, aged 47, he started a course to obtain a certificate in teaching English to adults. He told the court be believed his chances of being employed in this role would be prejudiced by the need to obtain a criminal record certificate.
- In 2006 G, then aged 13, was arrested for se*ual touching and attempted anal intercourse. There was exceptional mitigation, with the police record showing the activity was consensual and seemed to involve ‘dares’, se*ual curiosity and experimentation on the part of all three boys. G received two police reprimands and had not re-offended. In 2011, when working as a library assistant in a local college, he had to apply for an enhanced criminal record check because his work involved contact with children. The police proposed to disclose the reprimand, with an account of the mitigation, but G withdrew the application and lost his job, and felt unable to apply for any job requiring an enhanced check.
The supreme court said the multiple convictions rule is disproportionate, and thus incompatible with the ECHR, in two ways.
- It applies regardless of the nature, similarity, number or time intervals of offences, and thus does not achieve its objective of indicating propensity (an inclination to behave in a certain way).
- Warnings and reprimands (now called youth cautions) for younger offenders, which are intended to be instructive and are specifically designed to avoid damaging effects later in life through disclosure. The multiple convictions role does not achieve this purpose.
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
- Criminal record reform to help ex-offenders into work. Ministry of Justice news release, 15 July 2019: http://tinyurl.com/y2cbqxqo.
- Unlock response to supreme court judgment on criminal records disclosure regime. Unlock, 30 January 2019: https://www.unlock.org.uk/judgment-supreme-court/. Unlock is a national charity providing advocacy and support for people with convictions who are facing stigma and obstacles because of their criminal record. It provided a written submission to the supreme court “highlighting the unjust consequences of the current regime and the alternative, fairer systems available”. This comprehensive article summarises the judgment and looks at the current filtering system and support for reform.
- In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland); R (P, G and W) (Respondents) v Secretary of State for the Home Department & another; R (P) v Secretary of State for the Home Department & others  UKSC 3. Supreme court, 30 January 2019: https://www.supremecourt.uk/cases/uksc-2016-0195.html. Links to a press summary, the full judgment in PDF and HTML, and videos of the hearings and judgment summary. (Not that I expect anyone who gets these updates to watch case videos, but I find it amazing that they are available. And that we can watch a livestream of the supreme court.)
- What does Brexit mean for equality and human rights in the UK?. Equality and Human Rights Commission: http://tinyurl.com/yyc59qnp. See in particular the link to European Convention on Human Rights.
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).
- Rehabilitation periods. Disclosure and Barring Service, published 28 May 2019: https://www.gov.uk/guidance/rehabilitation-periods. Chart showing all sentences or disposals, and rehabilitation periods if the person was under 18 when convicted or the disposal administered, or was 18 or over.
- Telling people about your criminal record. Ministry of Justice, published 12 July 2019: https://www.gov.uk/guidance/telling-people-about-your-criminal-record. Similar to above but intended for individuals.
- Carrying out criminal record checks. Nacro: http://tinyurl.com/y4bm5g74. Clear advice for employers. Nacro also has advice for individuals.
- Legislation: Search for Rehabilitation of offenders on legislation.gov.uk.
- Resources under “Criminal record checks and GDPR” in my update 1919.
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.
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  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.
- NT1 and NT” v Google LLC. Global Freedom of Expression (Columbia University): https://globalfreedomofexpression.columbia.edu/cases/nt1-nt2-v-google-llc/. The summary above is reproduced, with minor amendments, from this source.
- Google unsuccessful in its defence to the “right to be forgotten”. Allen & Overy solicitors, 8 May 2018: http://tinyurl.com/yy74yy8f.
- NT1 & NT2 v Google LLC & the Information Commissioner’s Office  EWHC 799(QB). Courts & Tribunals Judiciary, 13 April 2018: https://www.judiciary.uk/judgments/nt1-nt2-v-google-llc-right-to-be-forgotten/ for links to press summary and the full judgment in PDF; http://www.bailii.org/ew/cases/EWHC/QB/2018/799.html for full judgment in HTML.
- See also resources under “Criminal records and GDPR” in my update 1919.