Northern Ireland looks set to become the front runner in its legislative approach to rehabilitation and continuing disclosure of convictions by former offenders. Once enacted, the reform will be the first time rehabilitation periods have changed since the introduction of the original legislation in 1978.
The reform stems from the outcome of a recent successful judicial review taken by the Northern Ireland Human Rights Commission
with supporting evidence provided by NIACRO
, two NGOs that have long campaigned for reform to rehabilitation periods for the disclosure of convictions. In Re application by JR123  NIQB 97
, 1 November 2021, the High Court in Belfast considered the challenge from an applicant convicted of arson and other offences and sentenced to five years in prison in 1980 after becoming involved in a gang. Under the Rehabilitation of Offenders (Northern Ireland) Order 1978 SI No 1908 (NI 27), any sentence of imprisonment of over 30 months can never be spent and is subject to lifelong disclosure. Despite a clean record of 40 years, the conviction continued to dog the applicant, who struggled to find work again and as a result became self-employed, yet still found it hard to obtain insurance.
The challenge was based on the failure to provide any prospect of the conviction becoming spent being contrary to the right to private life under article 8 of the European Convention on Human Rights
Giving judgment, Colton J recognised both the public interest in providing the opportunity for rehabilitation and the need to ensure those convicted of serious offences serve an appropriate punishment and to protect the public from harm after a sentence is served. Having held that article 8 was engaged and being interfered with, the issue turned on whether the means applied were proportionate. In considering the balance to be struck, the judgment noted the circumstances in which disclosure continues to be required are extensive and are not confined to employment, but extend to travel, insurance, accommodation and other applications.
In reaching the decision, the judge distinguished the circumstances from those in Re application by Gallagher for judicial review (Northern Ireland) and other appeals  UKSC 3
; April 2019 Legal Action
251See also April 2019 Legal Action 9.
and Lord Sumption’s analysis, which dismissed a challenge to broadly equivalent legislation in England and Wales and to criminal record checks. As a result, a declaration was made under the Human Rights Act 1998 (HRA) that provision in Rehabilitation of Offenders (NI) Order article 6(1) that sentences of over 30 months can never be spent was incompatible with ECHR article 8.
The case had prompted the Department of Justice (NI) (DoJ (NI)) to issue a consultation document on reform prior to judgment being given.2Rehabilitation of offenders: a consultation on proposals to reform rehabilitation periods in Northern Ireland, DoJ(NI), 8 January 2021; closed 5 March 2021.
As the Northern Ireland Assembly’s mandate came to an end before elections in May 2022, the DoJ (NI) published the Rehabilitation of Offenders (Amendment) Order (NI) 2022. The amendment would have increased the period of imprisonment where convictions are automatically never spent from 30 months to 10 years. Disclosure periods for sentences of between four and 10 years, one and four years and under a year would also have been substantially reduced. A similar approach would have been taken to disclosure of fines and offences committed by those aged under 18.
Unfortunately, the amendment was withdrawn as it had not updated rehabilitation periods for military service disciplinary convictions under the 1978 Order. Nonetheless, a revised amendment is expected to be brought forward to the new Assembly with the changes hopefully applying from early autumn 2022.
In England and Wales, and in Scotland, there have been earlier reforms to reduce rehabilitation periods. Most recently, in September 2020, the Ministry of Justice issued a white paper, A smarter approach to sentencing
(CP 292), proposing a rehabilitative period of the length of the sentence plus seven years for those sentenced to more than four years in England and Wales.
This proposal and other reductions are now contained in the Police, Crime, Sentencing and Courts Bill
(clause 191(6)), which is in its final stages in parliament. There is a sting in the tail, though, in that exemptions apply to those convicted of serious sexual, violent or terrorist offences (clause 191(3)) – the crimes covered are so widely drawn in the bill that the exemptions will capture very large numbers in their net.
With storm clouds approaching strategic litigation on so many fronts, JR123 and its aftermath comprise a timely reminder of the value that a judicial review and the HRA can have as catalysts for legislative reform.