UK Court of Appeal Finds Aspects of Spent Convictions Regime Incompatible with Article 8 of the ECHR


By McDowell Purcell \ In All Posts, Public & Regulatory

The Court of Appeal in the UK has found that the system which requires previous criminal convictions to be disclosed amounted, in certain circumstances, to a breach of a person’s right to privacy in the case of R (on the application of P) v Secretary of State for Home Department.

The original disclosure scheme was first set out under the Rehabilitation of Offenders Act, 1974 as amended by the Criminal Justice and Immigration Act 1998, and the Police Act 1997. The original legislation provided that disclosures must include details of all convictions and cautions, current or spent, and irrespective of the nature of the offence. This applied to all persons regardless of their age at the time of commission of the offence.

This legislation was challenged in 2014 and the challenge was successful. The legislation was thereafter amended by secondary legislation which greatly narrowed the scope of disclosures to the following general categories:

  1. Current convictions or cautions (dependant on certain factors for example, time elapsed and the age of the person at the time);
  2. Any spent conviction or caution in relation to certain offences listed in various pieces of legislation (the “serious offence rule”);
  3. Any spent conviction where a custodial sentence was imposed;
  4. Any spent conviction where the person has more than one conviction (the “multiple conviction rule”).

The disclosure, or non-disclosure of the above convictions was not dependant on the age of the accused.

Following this amendment, the Court of Appeal was then faced with a further challenge to the new legislation by four applicants. Two applicants challenged the serious offence rule and one applicant challenged the multiple conviction rule and the fourth applicant’s case was dismissed. All applicants were under the age of 18 at the time of the offences and their existence on the applicants’ records only came to light when they applied for employment or university courses as adults. The applicants alleged that the scheme was a breach of Article 8 of the European Convention on Human Rights, namely the right to private life and family. Article 8 provides that a public authority shall not interfere with this right unless the measure is necessary in a democratic society on certain grounds.

The Court held that the legislation presented a disproportionate interference with the right to privacy. Lord Leveson held that without a filtering mechanism to take into account such mitigating factors as time elapsed or the age of the person when the offence occurred, the legislation went beyond the scope of what was necessary for the protection of the public, whist also acknowledging that the purpose was to target cases which demonstrate a pattern of behaviour.

In Ireland, the primary legislation in the case of convictions obtained by a person under the age of 18, is the Children Act, 2001 (the “2001 Act”). Section 258 of the 2001 Act provides that a conviction may be expunged from a person’s record if the following conditions are met:

  1. the person was under the age of 18 at the time of the offence;
  2. the offence is not required to be tried in the Central Criminal Court;
  3. a period of 3 years has elapsed since the finding of guilt; and,
  4. the person has not reoffended in that period. If all these criteria are met, the offence will be removed from the person’s record.

It is clear that by contrasting the UK and Irish legislative schemes, there is more protection provided to persons under the age of 18 who commit an offence which may have arisen due to “misspent youth” and allows that person to obtain gainful employment without fear of losing out on employment opportunities.

In relation to convictions obtained as an adult, the Criminal Justice (Spent Convictions and other Disclosures) Act, 2016 (the “2016 Act provides a framework under  which a person may consider certain convictions as being spent.

For the purposes of the 2016 Act, convictions will be deemed spent for a person over the age of 18 if the following have occurred:

  1. not less than 7 years shall have passed since the date of the conviction;
  2. the sentence imposed is not an excluded sentence;
  3. the person shall have served or complied with any sentence imposed, or order made by the court; and,
  4. The person does not have more than one conviction.

An excluded sentence is a custodial sentence which exceeds 12 months imprisonment, is one which is required to be tried by the Central Criminal Court,  or is a sexual offence.

One point to note in relation to the spent convictions regime in Ireland is that a spent conviction must be disclosed where a person applies to work with children or vulnerable adults unless they fall within a limited exception to this rule.

A link to the case of R (on the application of P) v Secretary of State for Home Department can be found here.

Authors: Natasha Forde and Brian Hammond