Court of Appeal gives landmark ruling on criminal records

22 March 2013

 

The case involved three Appellants, all of whom were appealing against the principle that, for certain occupations, ‘old’ criminal convictions are never regarded as ‘spent’. Their case was that the law with regard to enhanced criminal record certificates was incompatible with Article 8 of the European Convention on Human Rights (the right to a private and family life). In brief, the Court of Appeal has ruled that the current system which requires the blanket disclosure of criminal convictions, cautions and warnings, is “disproportionate and incompatible” with the right to a private and family life.

The Court also made a declaration that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 is ultra vires (outside the power of) the 1974 Act because it is incompatible with the Article 8 Convention. It is now a matter for Parliament to decide (1) when crimes committed by children should be expunged from their records and (2) the future treatment of police cautions (which are given in private and are therefore part of a person’s ‘private life’ from the outset), and to amend the current disclosure regime accordingly.

However, all criminal records checks are carried out under a system which is exempt from the Rehabilitation of Offenders Act 1974, but the Court of Appeal has determined that the 1974 Act does not permit the government to make regulations that breach Article 8, effectively declaring the Exceptions Order to be ‘non-law’ and potentially throwing the entire system of criminal records checks into confusion.

The Home Office is seeking leave from the Supreme Court to appeal the ruling, and the Court of Appeal has directed that its decision shall not take effect pending this determination by the Supreme Court.

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