Landmark ruling on criminal records

04 February 2013

 

The case involved three Appellants, referred to as ‘T’, ‘JB’ and ‘AW’, 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 (EHRC) was incompatible with Article 8 of the European Convention on Human Rights (the right to a private and family life).

T was a 21-year-old man who was initially turned down for a university teaching course because he had two police warnings when he was 11 in connection with two stolen bicycles; JB was a woman in her mid-50s who qualified as a carer but was turned down for employment because of a police caution over 10 years earlier for a minor shoplifting offence; and AW was a 26-year-old who had been an accomplice in a car-jacking 10 years earlier during the course of which the driver was killed. She received concurrent sentences of 5 years’ detention for manslaughter and 4 years for robbery, and was subsequently unable to join the Army because of her convictions.

AW’s appeal was lost because of the “very serious nature” of the offence, but in the cases of T and JB, the Court made a declaration that the disclosure scheme in the Police Act 1997, which requires the police “to provide any information which the chief officer reasonably believes to be relevant for the purpose [for which an enhanced criminal record certificate is sought] and, in the chief officer’s opinion, ought to be included in the certificate”, is incompatible with the Article 8 Convention.

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.

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. 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 making of 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 government intends to apply to the Supreme Court for permission to appeal, 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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