UK Supreme Court finds disclosure of minor convictions to employers infringes ECHR

The UK Supreme Court has found the criminal records disclosures system in breach of Article 8 of the European Convention on Human Rights (ECHR).

Four separate cases were brought before the Court on the legality of the criminal record checks scheme. The cases involved applicants, identified as Lorraine Gallagher, P, G and W, who had all been convicted, reprimanded or received cautions in respect of minor offences.

Gallagher was convicted of driving offences, including failure to wear a seatbelt and failure to secure a child with a seatbelt. P received a caution for the theft of a sandwich. In the same year, P was convicted of stealing a book worth 99p while homeless and suffering from undiagnosed schizophrenia. W, aged 47, was convicted of assault following a fight on the way home from school at the age of 16, but had not offended since. At 13 years old, G received a police reprimand for sexually assaulting two younger boys, however it was believed the activity was consensual and in the form of a ‘dare’.

Each of these offences were ‘spent’ for the purposes of rehabilitation legislation, however, full criminal record had to be disclosed if applying for employment involving contact with children of vulnerable adults. The criminal record checks system also required past offences to be disclosed where the conviction was serious, where current and not spent, where it resulted in a custodial sentence and where someone had more than one conviction. The applicants therefore claimed the disclosure schemes in England and Wales, and Northern Ireland were incompatible with Article 8 of the European Convention on Human Rights.

This raised the question as to whether the interference with Article 8 was “in accordance with the law” (the legality test) and “necessary in a democratic society” (the proportionality test). The Supreme Court dismissed the appeals (except for the case in W) on the basis of partial breach of the proportionality test. Lord Sumption, for the majority, found disproportionality on two counts: the requirement of disclosure of multiple convictions even where minor, and the failure to distinguish between warnings and reprimands, as opposed to convictions, issued to juveniles.

Therefore he concluded that, in the cases of P and Mrs Gallagher there should be a declaration of incompatibility as the disclosures were based on the multiple convictions rule; there should be a declaration in G’s case as the disclosure related to a reprimand against a younger offender; but that the appeal should be allowed in W’s case because it was appropriate to include assault occasioning actual bodily harm within the category of offences requiring disclosure.

Here in Ireland, Senator Lynn Ruane recently introduced the Criminal Justice (Rehabilitative Periods) Bill 2018 which expands on the spent convictions legislation to address issues of eligibility, proportionality, and a new approach for young adults.

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