Statutory disclosure schemes covering England & Wales, and Northern Ireland, relating to past offending have been held incompatible in certain respects with the European Convention on Human Rights, in a ruling by the UK Supreme Court delivered this morning.
Five Justices refused appeals (except as respects one applicant) by the Home Secretary, and the Department of Justice for Northern Ireland, against rulings in favour of four applicants so far as they held that the schemes, made under the Rehabilitation of Offenders Act 1974 and corresponding Northern Ireland provision, and the Police Act 1997, were disproportionate as they affected the applicants.
The English appeal concerned three applicants. P was cautioned in 1999 for theft of a sandwich, and convicted the same year for theft of a book worth 99p and failing to surrender to bail. She received a conditional discharge. She was then 28 years old, homeless and suffering from undiagnosed schizophrenia which was now under control. She was qualified to work as a teaching assistant but had been unable to find employment, she believed as a result of her disclosure obligations. W, then aged 16, was convicted in 1982 of assault occasioning actual bodily harm during a fight between a number of boys on their way home from school. He received a conditional discharge, and had not offended since. Training for a certificate in teaching English to adults, he believed his chances of obtaining teaching employment would be prejudiced by the need to obtain a criminal record certificate. G was arrested in 2006 when aged 11 for sexually assaulting two younger boys. There was exceptional mitigation. The police believed the conduct to have been a case of sexual curiosity and experimentation on the part of all three boys. G received two police reprimandsand had not offended since. Working as a library assistant, he was required to apply for an enhanced criminal record check. When the police proposed to disclose the reprimand, and the mitigation, G withdrew the application and lost his job.
In the Irish case, Lorraine Gallagher had a job offer at a day centre for adults withdrawn on disclosure of convictions in 1996 and 1998 for driving without a seatbelt and five counts of carrying a child under 14 without a seatbelt.
All five Justices agreed that the appeals should be refused as respects three of the applicants, but for different reasons. Lord Sumption, with whom Lord Carnwath and Lord Hughes agreed, held that the rules met the legality test under article 8 of the Convention as they were highly prescriptive, mandatory and left no discretion, so there was no real difficulty in assessing the proportionality of the two schemes.
In relation to proportionality, it was legitimate to require disclosure by reference to pre-defined categories; but that in two respects, the "carefully drawn" categories were disproportionate. These were the multiple convictions rule, since it applied irrespective of the nature, similarity or frequency of offences, and therefore did not achieve its purpose of indicating propensity; and warnings and reprimands for younger offenders, the purpose of which was instructive and specifically designed to avoid damaging effects later in life through disclosure.
The exception, where disclosure was held appropriate, was W’s case, since assault occasioning actual bodily harm might be a serious offence and it was appropriate to include it within the category of offences requiring disclosure.
Lady Hale delivered a concurring judgment; but Lord Kerr would have refused the appeals in all cases. He would have found the scheme in England & Wales to fail the legality test since the cases showed there was at least the potential for widespread disproportionate outcomes in disclosure, and it could not be said that there were safeguards adequately to examine proportionality. He would also have found the scheme disproportionate.