In Re an application by Lorraine Gallagher for Judicial Review (Northern Ireland) R (on the application of P, G and W) (respondents) v Secretary of State for the Home Department and another (appellants)
In a 4-1 majority decision, the Supreme Court ruled that the multiple conviction rule – whereby the existence of more than one conviction will mean that all convictions, no matter their age or subject matter will be disclosable – is incompatible with Article 8 of the European Convention on Human Rights 1950 ("ECHR").
The respondents to the appeals (Gallagher, P, G and W) were convicted or received cautions or reprimands in respect of relatively minor offending:
In all four of the appeals, the respondents challenged the two related statutory disclosures scheme as being incompatible with Article 8 of the ECHR.
The United Kingdom has two schemes for disclosing criminal conviction data, which operate in parallel.
The first scheme is under the Rehabilitation of Offenders Act 1974 for England & Wales and the equivalent legislation is Scotland and Northern Ireland. Under this scheme, there is no duty for an ex-offender to disclose information concerning his or her previous conviction where such convictions and cautions have become "spent", i.e. that the rehabilitation period for the conviction has expired. The ex-offender for all legal purposes as a person who has not committed, charged, prosecuted or convicted of the offence. However, for thirteen specified purposes enumerated in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (and equivalent legislation in Scotland and Northern Ireland), the right of the ex-offender not to disclose a conviction or caution does not apply. Such specified purposes include assignment to work with children or vulnerable adults.
The second scheme is under the Police Act 1997, which governs disclosure by the Disclosure and Barring Service ("DBS") in England & Wales, Disclosure Scotland in Scotland, and Access NI in Northern Ireland. Sections 113A and 113B deal with Standard Disclosure and Enhanced Disclosures, respectively, which create a system of mandatory disclosures of all convictions and cautions on a person's record if certain eligibility criteria are satisfied.
Both schemes were modified in 2014 to limit the disclosure of certain convictions and cautions to four main categories: (1) convictions and cautions for any of a list of more serious offences; (2) convictions which resulted in a custodial sentence; (3) "unspent" convictions; and (4) all convictions and cautions where the person has more than one conviction. It is category (4) that is at issue in the present case.
Giving the main judgment, Lord Sumption acknowledged that Article 8 ECHR was triggered and so it fell to the court to assess any interference with the right to respect for private and family life to be "in accordance with the law" (the "legality test") and "necessary in a democratic society" (the "proportionality test").
Tracing the case law of the Strasbourg Court, particularly the decision in MM v United Kingdom (App. No. 24029/07), Lord Sumption considered that the legality test was satisfied. Both schemes were sufficiently accessible and foreseeable as the rules governing disclosure of criminal conviction data under them are highly prescriptive, mandatory and leave no discretion, thereby permitting an assessment of their proportionality. On this last point, Lord Kerr disagreed, considering instead that the schemes' safeguards are not sufficient to guarantee against the risk of abuse or arbitrariness.
With regard to the proportionality test, Lord Sumption considered that legislation for disclosure by reference to pre-defined categories of offence, offender or sentence is justified and that the categories in respect of the schemes are proportionate However, there are two exceptions. The first exception is that the multiple conviction rule does not achieve its purpose of identifying serial offenders as it applies irrespective of the nature, similarity and frequency and the intervals between offences. In Lord Sumption's view "a rule whose impact on individuals is …capricious cannot be regarded as a necessary or proportionate way of disclosing to potential employers criminal records indicating a propensity to offend." The second exception is that warning and reprimands for young offenders, which are designed to be instructive and avoid damaging effects later in life, should be excluded from the disclosable categories under the schemes. Speaking obiter, Lord Sumption considered that youth cautions should also be excluded in the same way.
Despite the filtering rules introduced in 2014 by the government following the landmark case of R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35 to draw ever brighter lines between competing public interests – namely the rehabilitation of ex-offenders and the protection of members of the public against individuals who might do them harm – marginal cases such as those in the present decision continue to question the ongoing compatibility of the schemes against Article 8 ECHR.
The decision of the Supreme Court is a welcome one in restoring greater balance between the competing public interests mentioned above. However, both the majority and dissenting judgments recognise that the schemes are designed to place employers at the heart of determining the relevance of a conviction for a given role, which may not necessarily be in the best interest of a candidate who is an ex-offender. Conceding this point, Lord Sumption explained that "[r]ealistically, it must be assumed that some employers will take the line of least risk, and decline to employ ex-offenders on principle, especially if there is an alternative candidate without a criminal record." Likewise, Lady Hale accepted that "employers are likely to take a precautionary approach if they have more applicants than posts available."
Whereas the majority opined that employers "must be trusted to exercise…judgment responsibly" when making a final recruitment decision, in his dissenting opinion, Lord Kerr took the view that the four cases before the court "represent the significant impact that the current policy choice has on a potentially substantial number of individuals" and that such cases "should not be consigned to the category of unfortunate casualties at the margins."
Irrespective of where the line is drawn, this case is a reminder for employers investigating an applicant's criminal history that a heavy burden sits on the shoulders of the recruiter who must consider the relevance of a conviction to the role to be filled. The Supreme Court's decision will certainly lighten that burden by removing youth warnings and reprimands and, more helpfully, minor multiple offences from Standard and Enhanced Disclosure Certificates, thereby reducing the risk of a recruiter considering irrelevant convictions which would otherwise involve the excessive collection and use of personal data under data protection law.
From an employment law perspective, although a recruitment decision not to make an offer of employment based on unspent criminal convictions are unlikely to lead to employment claims, guidance – including those from NACRO and Unlock – as well as the case law suggests that when exercising discretion, employers should consider how relevant unspent convictions are to a specific role.
Furthermore, in their respective codes of practice, the DBS, Disclosure Scotland and Access NI require employers obtaining disclosure certificates as part of the recruitment process to have a written policy on the recruitment of ex-offenders, a copy of which must be provided to all applicants for positions where a disclosure will be requested. Such a policy will set out the employer's obligation to treat ex-offenders fairly and not to discriminate because of a conviction or other information revealed.
The full decision can be found here.
