The UK High Court had held that the law forcing three former prostitutes to reveal their past convictions is unlawful and violates the right to a private and family life under Article 8 of the European Convention on Human Rights (‘ECHR’).
The case concerned three complainants who had committed solicitation offences contrary to section 1 of the Street Offences Act 1959. Two of the three women had been under the age of consent when they had been groomed into becoming prostitutes, and the third was 18. Each of the complainants had multiple convictions, the last of which took place in the late 1980s and 1990s. In relation to each of the convictions the Court understood that the penalties imposed were almost always fines, with conditional orders of discharge being made on a few occasions.
The complainants have contended that though the convictions were minor, they have had a continuing effect on the lives of each of the three women. The claimants, when applying for certain types of employment, were required to disclose their convictions. They contended that this is unlawful and that the operation of statutory provisions under the Exceptions Order 2013 exposed them to unfair embarrassment and also placed them at a disadvantage when trying to obtain employment which they were likely to seek. They also stated that it acts as a deterrent to attempting to apply for such employment positions.
In light of the above it was argued on behalf of the complainants that the legislation was unlawful and unfair, and in violation of their rights under Article 8 of the ECHR. It was noted that the Exceptions Order legislation was amended in 2013 and categories of protected convictions and cautions were introduced. This legislative change was on the back of the Supreme Court case R (T) v Chief Constable of Greater Manchester Police; R (B) v Secretary of State for the Home Department [2015], where the 1975 Exceptions Order were found to be incompatible with Article 8 ECHR. The complainants relied on this decision in presenting their arguments and contended that the changes to the legislation introduced in 2013 were insufficient and the law still remained incompatible with the ECHR. It was argued that the legislation fails to draw any distinction on the basis of the nature of the offences, the date they were committed, the penalty imposed or the relevance of data to the employment sought.
While the claimants put forward a number of legal arguments and invoked several rights under the ECHR the Court held the violations were limited to a breach of their Article 8 rights and declared the Exemptions order were incompatible with the ECHR pursuant to Section 4 of the 1998 Human Rights Act. The court disagreed with the defendants arguments that the employer is who is best placed to assess a risk posed by an applicant; stating that such an argument provides no justification for requiring disclosure in circumstances where no reasonable employer could regard the previous convictions as having any relevance to the risk assessment in the employment concerned. The Court stated that the Exceptions order did result in interferences with the claimants Article 8 rights and concluded that it was not in accordance with the law nor necessary in a democratic society. The Court declared that the schemes under the Exceptions Order 2013 were unlawful.
Click here for a copy of the judgement.
Click here and here for further commentary on the case.