Do I Have to Disclose Historic Convictions?
In the matter of an application by Gallagher for Judicial Review (Northern Ireland);
R (on the application of P, G and W) (Respondents) v Secretary of State for the Home Department and another (Appellants)
R (on the application of P) (Appellant) v Secretary of State for the Home Department and others (Respondents)
 UKSC 3
It is by no means unknown for prospective doctors, nurses and lawyers to find their careers hindered by historic convictions. Even decades after an episode of youthful folly, a person’s past can return to blight their road to advancement. The desire for public protection inevitably clashes with the principle of rehabilitation. It has proved a particularly problematic balance to strike – one which has found itself again and again before the courts. In the most recent judgment, the Supreme Court again considered the compatibility of the existing disclosure regime with Article 8.
The Rehabilitation of Offenders Act 1974 deems a person’s convictions to be “spent” over time so that they did not have to be disclosed when applying for employment. The Act made provision for exceptions and until 2014 any prospective doctor, nurse, lawyer still had to disclose all convictions, whether spent or not. This position had the benefit, at least, of being clear and comprehensible. However, the Supreme Court in R (T) Chief Constable of Manchester  AC 49 ruled that it was also a clear breach of an applicant’s Article 8 rights.
The pithily named Police Act 1997 (Criminal Records Certificate: Relevant Matters) (Amendment) (England and Wales) Order 2013 introduced a more nuanced regime. Currently an applicant only has to disclose:
(i) Convictions or cautions which fall within a defined category of serious offences (violence and sexual offences generally), (“Serious Conviction Category”)
(ii) Convictions which resulted in a custodial sentence,
(iii) Convictions or cautions which are less than 11 years old for an adult, or 5 ½ years old if committed when a minor,
(iv) Multiple convictions. i.e. where the applicant has more than one conviction, he must disclose all his convictions or cautions. (“Multiple Conviction Category”)
The Court of Appeal considered the Serious Offence Category, and the Multiple Offence Category, to be in breach of Article 8. In its view these categories were both arbitrary and disproportionate.
On appeal to the Supreme Court, Lord Sumption observed that any infringement of Article 8 had to be (i) “in accordance with the law” and be (ii) “necessary in a democratic society” for public safety, the prevention of crime, the protection of health or morals, or the protection of others’ rights. He disagreed with the Court of Appeal’s assessment that this regime failed this first test of legality. The Strasbourg caselaw required that the law in question had to be accessible and the consequences foreseeable (Huvig v France  12 EHRR 528) – i.e. the law must not confer so broad a discretion that the individual is dependent on the whim of the person administrating it. He disagreed with the proposition that R (T) had broadened this interpretation so that “a measure may lack the quality of law even where there is no relevant discretion and the relevant rules are precise and entirely clear, if the categories requiring to be disclosed are simply too broad or insufficiently filtered.”
As to the question of proportionality, he observed that a legislative regime based on pre-defined categories could be justifiable. Indeed, as Animal Defenders International v United Kingdom  EHRR 21 observed:
“the more convincing the general justification for the general measure are, the less importance the court will attach to its impact in the particular case…
The central question… is not… whether less restrictive rules should have been adopted or, indeed, whether the state could prove that, without the prohibition, the legislative aim would not be achieved. Rather the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded it.”
Where legislation is based on such pre-defined categories, it inevitably follows that there will be hard cases which would be considered disproportionate in a system based on a case by case analysis. However, the court must assess the proportionality of the categorisation itself and not the impact on individual cases. In Lord Sumption’s view, the use of pre-defined categorisation was appropriate for the disclosure of criminal records. The ultimate decision of what to make of the conviction should be left to the employer, not the State. The value of certainty in this area was high. Whilst it may be possible to adopt a system of case by case review “there would be a cost in terms of protection of children and vulnerable adults, foreseeability of outcome by candidates, consistency of treatment, practicality of application, and delay and expense”.
In the court’s view, the Serious Conviction Category was an appropriate mode of categorising offences. W, one of the respondents, had been convicted ABH in 1982 and had never reoffended since. This example of a “hard case” did not render the category at large disproportionate.
The Multiple Conviction Category, by contrast, was disproportionate. Its rationale was laudable – it attempted to catch the serial offender. A criminal propensity may make the individual less suitable for certain employment. The rule was drafted in a “particularly perverse way”, however. It applied “irrespective of the nature of the offences, of their similarity, of the number of occasions involved or of the intervals of time separating them”. Another respondent, P, had a historic caution and conviction for two cases of minor theft. These would not have to be disclosed under the current regime but for the fact she also received a Bail Act conviction at the same time as the theft conviction – “these offences are not only too minor but too disparate to suggest a propensity to even the most suspicious mind”. Moreover, the court also condemned the disclosure of warnings or reprimands administered to young offenders. These could be imposed without the consent of the offender in question. They were meant to be an alternative to prosecution so as not to have a negative impact on offenders’ futures. Including them in a disclosure regime was inconsistent with that goal.
Those respondents who had been caught by the Multiple Conviction Category obtained a declaration that this element of the regime was incompatible. It may prove small comfort. The court declined to quash the provision and yet again the issue must once await a further redraft.