The UK Court of Appeal has found the UK system of requiring disclosure of previous criminal convictions in certain circumstances in breach of the right to privacy.
The case concerned four joined challenges to the criminal record disclosure scheme, which had been amended by secondary legislation after a successful Supreme Court challenge to the previous scheme in 2014. The scheme, as amended, provides that certain convictions lapse and do not need to be disclosed after a certain time but if there is more than one conviction, or a conviction for a serious offence, these remain disclosable for life when applying for certain kinds of work.
One of the applications was dismissed by the Court of Appeal. Of the other three applicants, P was challenging the multiple conviction rule. She was convicted of two minor offences arising from the same incident in 1999, while suffering from schizophrenia. She was obliged to disclose this, along with details of her medical history, in applying for jobs as a teaching assistant. The serious offence rule was challenged by G and W. G was reprimanded at the age of 13 for sexual offences; W was convicted of Actual Bodily Harm in 1982 at age 16 and had committed no subsequent offences.
In finding that the scheme violated Article 8, as transposed by the Human Rights Act 1998, Lord Leveson noted that a scheme which applies indiscriminately with no mechanism for consideration of the circumstances does not provide adequate safeguards against arbitrary treatment. While Article 8 provides that there is no private life if the measure is necessary in a democratic society on certain grounds, it was held that the rules here went further than necessary. On the multiple conviction rule, the Court accepted evidence that its purpose was to target cases which demonstrate a pattern of offending behaviour.
However, what Lord Leveson deemed to be the scheme’s ‘bright line rule’ represented a disproportionate interference with the right to privacy. As regards the serious offence rule, it was noted that there is no filtering mechanism to take into account the amount of time which has passed since the conviction or the person’s age when committing the offence. The Court found in looking at the cases of G and W, that it was difficult to see how disclosure in the present day was relevant to the scheme’s aim of minimising risk to the public. Lord Leveson held that it was feasible to devise a filter system aimed at cases no longer requiring disclosure to balance the requirements of Article 8 with the requirement to ensure that the public is kept safe from offenders who still pose a risk, but that devising such a system was a matter for the legislature.
Click here for the full judgment in R (on the application of P) v Secretary of State for Home Department.