No longer haunted by childhood mistakes?
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Marc Bloomfield
Jennifer Twite examines the recent Supreme Court judgment on criminal record disclosure and what it might mean for people who were children at the time of their conviction or caution.
On 30 January 2019, the Supreme Court handed down judgment in the case concerning the disclosure of criminal records: Re application by Gallagher for judicial review (Northern Ireland); R (P, G and W) v Secretary of State for the Home Department and another; R (P) v Secretary of State for the Home Department and others [2019] UKSC 3. The court upheld a declaration of incompatibility under the Human Rights Act 1998 made by the Court of Appeal and the High Court. However, the Supreme Court’s reasoning was substantially different from that of the lower courts.
The respondent G was represented by Just for Kids Law, which argued the need for a distinct approach when considering the later disclosure of offences committed as a child.
Filtering rules
The case concerned the filtering rules, which are just one part of a complex regime that governs what information can be disclosed to employers. The Rehabilitation of Offenders Act 1974 was brought in with the intention of allowing people to move on with their lives and introduced the concept of spent convictions. But the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 SI No 1023 allows employers to ask about spent convictions and cautions for certain roles, and the Police Act (PA) 1997 introduced criminal record checks, which allow employers to ask the Disclosure and Barring Service (DBS, previously the Criminal Records Bureau) for a relevant certificate that will disclose the material to which they are entitled. There are increasing numbers of positions where employers are entitled to ask about spent convictions and cautions.
Prior to the earlier case of R (T and another) v Secretary of State for the Home Department and another [2014] UKSC 35; October 2014 Legal Action 26, every single conviction or caution would be disclosed to an employer in a criminal record check, whether it was spent or not. In R (T), the Supreme Court held such blanket and indiscriminate disclosure to be unlawful. Following the judgment in the Court of Appeal in R (T) ([2013] EWCA Civ 25; April 2013 Legal Action 30), the government introduced the filtering rules, based on the report of Sunita Mason (A common sense approach: a review of the criminal records regime in England and Wales – report on phase 1, Home Office, 11 February 2011).
The filtering rules govern the automatic disclosure of spent convictions in criminal record checks. There are two types of criminal record check: standard and enhanced. In both types, all cautions and convictions will be automatically disclosed unless filtered. In enhanced checks, the police are given a discretion to disclose other material, which can include allegations, acquittals and fixed penalty notices or other police intelligence, where it is relevant to do so. It is the automatic disclosure of spent convictions and cautions that came under scrutiny in this case.
All cautions for offences, other than cautions for offences listed under Criminal Justice Act 2003 Sch 15, will be filtered after five years (adult cautions) or two years (youth cautions). A single conviction for an offence that is not listed under Sch 15 and that did not result in a sentence of imprisonment will be filtered after 11 years if received as an adult, or five-and-a-half years if received as a child.
If a conviction or caution is not filtered, it will be automatically disclosed in all criminal record checks and there is no discretion to allow the DBS not to disclose it. This is in contrast to many other lifelong requirements. Even the indefinite notification requirements imposed on an individual after conviction of a sexual offence are mitigated by the option of applying for a review after a fixed period of time. No such option is available for an individual who is required to disclose their criminal record for certain jobs for the rest of their lives.
The appeal
The appeal focused first on whether the filtering rules are in accordance with the law. The arguments on this centred on the interpretation of R (T) and specifically the judgment of Lord Reed. In R (T), Lord Reed held that the previous scheme was a breach of article 8 of the European Convention on Human Rights as it was not in accordance with the law. At para 113 (quoting Malone v UK App No 8691/79, 2 August 1984 at para 68), he stated that in order for a scheme to have the quality of the law it must ‘give the individual adequate protection against arbitrary interference’. R (T) followed the case of MM v UK App No 24029/07, 13 November 2012 in the European Court of Human Rights. At para 119 of the R (T) judgment, Lord Reed found that the blanket rule that meant all convictions and cautions would be disclosed was not in accordance with the law:
… because of the cumulative effect of the failure to draw any distinction on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought, and the absence of any mechanism for independent review of a decision to disclose data under [PA 1997] section 113A.
The appellant secretaries of state (the justice and home secretaries) did not invite the Supreme Court to overturn the decision in R (T), but disagreed with the Court of Appeal’s interpretation of Lord Reed’s judgment, arguing that the government had made a more nuanced scheme in introducing the filtering rules, and that bright line rules would always create hard cases at the margins, but were not unlawful, and it was for parliament to decide where to draw the bright line rules.
The Supreme Court, overturning the decisions of both the High Court and the Court of Appeal before it, agreed with the secretaries of state and found that the scheme itself is in accordance with the law and necessary in a democratic society. However, the court found that in two distinct matters the scheme is disproportionate, and therefore in breach of the article 8 rights of those affected by it. Those two matters are the disclosure of youth reprimands and the multiple conviction rule.
The multiple conviction rule (PA 1997 ss113A(3) and (6)(b) and 113B(3) and (9)(b)) was found to lead to arbitrary results. Lord Sumption, giving the majority judgment, accepted that the aim of the rule is legitimate, namely that it may be appropriate to disclose minor offences where there is repeat offending. However, the practical effect of the rule is unjustifiable. The respondent Ms Gallagher had to disclose her record because she was driving with more than one child in her car who was not wearing a seat belt. She therefore had multiple convictions (for carrying a child without a seat belt) due to the number of children in the car.1She was actually convicted a second time for this offence, but as Lord Sumption noted at para 63, ‘even if she had not committed a further offence in 1998, her convictions of 1996 would have been disclosable simply because there were four unsecured persons in the car at the time, each of whom gave rise to a distinct conviction’. P had a conviction for shoplifting and a conviction for failing to surrender to custody at the appointed time in relation to the shoplifting charge. The court found that such disclosure was not proportionate. The number of convictions an individual has is often arbitrary and not a true indication of the risk that individual might pose.
The rights of children were in part recognised in the judgment, which found that reprimands and warnings received by children (now known as youth cautions) should not be disclosed, as they are intended as a diversionary and rehabilitative measure and are not designed to criminalise children.
Youth reprimands and warnings were replaced with youth cautions under Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) ss135–138. The respondent G, whose case was before the Supreme Court, had two youth reprimands that he received as a child for incidents that occurred when he was 11 and 12 years old. Lord Sumption further pointed out that no consent is needed to receive one, and that they should be treated differently from adult cautions.
The current filtering rules, while allowing for cautions or convictions received as children to be filtered more quickly, do not take into account the age of the offender in determining whether or not the matter should be filtered.
On behalf of G, it was argued that there should be a distinct approach in relation to offending committed as a child. The current filtering rules, while allowing for cautions or convictions received as a child to be filtered more quickly, do not take into account the age of the offender in determining whether or not the matter should be filtered. This leads to offences committed by a child still being disclosed to employers for the rest of the individual’s life. It was argued that this is contrary to international legal principles concerning the rights of children, such as the UN Convention on the Rights of the Child, as well as the principal aim of the youth justice system, in that it failed to recognise the capacity of children to change.
What now?
The government has not yet responded to the judgment, and therefore we do not yet know what measures it will take to implement the decision. Until it does, nothing changes for the many people who continue to have to disclose old and minor offences.
There is a particular concern about criminal records obtained in childhood. This judgment will have a huge effect on the thousands of children who receive cautions every year, many of whom already assume that a diversionary measure that they receive at the police station, which is seen as a way of avoiding going to court and being criminalised, will not affect their employment in later life. For some, it is a nasty shock when they do try to pursue their chosen career to find that incidents that occurred in childhood, and which are long since put behind them, are disclosed to employers. Even those who go to court are often under the mistaken impression that this will not be something that affects their future. There is much misunderstanding around the nature of spent convictions, with many children believing that a referral order, which is spent at the end of the order, is not a criminal conviction. However, it is subject to the same disclosure rules as any other conviction.
The Justice Committee condemned the current criminal records regime’s treatment of childhood offending, for its failure to distinguish offending as children from offending as adults (Disclosure of youth criminal records. First report of session 2017–19, HC 416, 27 October 2017). It found that this undermines the very aims of the youth justice system, as it continues to stigmatise people for offences committed as children throughout their entire lives, without allowing them to move on.
It is now a matter for the government to decide how to deal with these declarations of incompatibility. The judgment follows numerous criticisms of the criminal records system: the Lammy Review (The Lammy Review: final report, 8 September 2017), the Taylor Review (Review of the youth justice system in England and Wales, Cm 9298, December 2016), the Law Commission (Criminal records disclosure: non-filterable offences, Law Com No 371/HC 971, 1 February 2017) and the Justice Committee (see above) have all called for reforms to the system. It is therefore expected that parliament will consider this judgment in the wider context of the whole system, and it may be that wholescale reform is appropriate.
Youth Justice Law and Practice, by Kate Aubrey-Johnson, Shauneen Lambe and Jennifer Twite, is a comprehensive and practical guide to representing children in the criminal justice system. It is essential reading for lawyers and professionals working in the youth justice system, appearing in the youth court and representing children in the adult criminal courts. It is available from LAG in print, as an eBook and in a print/eBook bundle.
 
1     She was actually convicted a second time for this offence, but as Lord Sumption noted at para 63, ‘even if she had not committed a further offence in 1998, her convictions of 1996 would have been disclosable simply because there were four unsecured persons in the car at the time, each of whom gave rise to a distinct conviction’. »

About the author(s)

Description: Jennifer Twite
Jennifer Twite is a barrister and head of strategic litigation at Just for Kids Law.