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Will Court of Appeal judgment change face of disclosure?

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The following article was first published on Lexis®PSL Crime on 8 February 2013. Click here for a free 24 trial of Lexis®PSL.


Crime analysis: What next for disclosure of convictions, cautions and warnings? Mike Pemberton, partner & manager of the civil liberties unit at Stephensons LLP, and Katy Reade, senior lawyer, at the Equality & Human Rights Commission, discuss their recent victory in the Court of Appeal

Original news

R (on the application of T) v Chief Constable of Greater Manchester and others; R (on the application of JB) v Secretary of State for the Home Department; R (on the application of AW) v Secretary of State for Justice [2013] All ER (D) 212 (Jan)

The Court of Appeal, Civil Division made declarations that provisions of the Police Act 1997 (PA 1997) were incompatible with art 8 of the European Convention on Human Rights and that the Rehabilitation of Offend-ers Act 1974 (Exceptions) Order) 1975 was incompatible with art 8 and, therefore, ultra vires the Rehabilita-tion of Offenders Act 1974.

What were the key features of the case?

Mike Pemberton (MP): The problem facing the court concerned the PA 1997 and the Rehabilitation of Of-fenders Act 1974 (Exceptions) Order) 1975, SI 1975/1023.

The Court of Appeal decided that both were incompatible with ECHR, art 8. When considering the propor-tionality of the policy of disclosure the court found that the broad brushstroke approach of disclosure--a 'must disclose' approach--infringed T's art 8 rights.

However, the Court of Appeal made it clear that not everything could be brushed under the carpet. When considering one of the joined cases, the court decided that a conviction for manslaughter was still remnant for disclosure.

It was the lack of an effective review mechanism, and failure to give individual consideration, that were the key issues in the case of T.

What is the significance of this ruling?

MP: The current position is the law remains the same. Although permission to appeal to the Supreme Court was refused by the Master of the Rolls, who gave the led judgment, the decision has been stayed pending an appeal. The Home Department have 28 days to seek permission to appeal from the Supreme Court.

The success of an application for appeal cannot be predicted. However, as the Master of the Rolls gave the lead judgment and was supported by two lord justices, permission to appeal to the Supreme Court might not be forthcoming.

We are confident the law is quite clear and that when recent case law is taken into consideration the judg-ment appears to be on firm legal grounds. Page 2

How did the court approach art 8 in this case?

MP: The court undertook the usual test of proportionality when considering the arguments under art 8. The lack of review mechanism/individual consideration were the tipping points in the proportionality test and are supported by both European and domestic case law.

Katy Reade (KR): While disclosure of old convictions and cautions had the express aim of protecting child-ren and vulnerable adults, the current statutory regime which requires disclosure in all cases meant disclo-sure in these cases was disproportionate to that legitimate aim and interfered with a person's privacy rights. This system effectively excluded some people from employment. The court's decision highlights the fact that the provision of all criminal convictions and warnings to an employer when a criminal records check is un-dertaken is unlawful. Although the protection of vulnerable persons and the need to be able to select appro-priate candidates are legitimate aims, the court emphasised that the statutory scheme needs to strike a fair balance between the interests of employers, children and vulnerable adults on the one hand and those of offenders who seek employment on the other hand--this balance had not been proportionately struck in this case.

Is the government now under an obligation to undertake a filtering process in rela-tion to criminal records?

MP: The position is the effect of the judgment is stayed pending appeal from the Secretary of State.

In December 2011, the independent monitor, Sunita Mason, undertook an Independent Review of the Crim-inal Records Regime. This contained a number of suggestions of the structure of a filtering process how it might operate in practice. The government responses to Ms Mason's report can be found here-Report: In-dependent Review of the Criminal Records Regime - Government Response.

It should be noted that a previous practical process existed. The process, known as 'stepping down', allowed information still held on PMC to be held but not disclosed to third parties. This would then trigger a consider-ation of the disclosure and a judgment call would be made on whether or not the disclosure was necessary.

The 'stepping down' process stopped after the Police Act 1997 came into force. The Police Act 1997 said all info must be disclose, so practical solution became illegal. Despite concerns of government, our suggestion before the court was that the original system seemed to work and could be a model to solve the problems recognised by the court.

As part of decision process on disclosure, that already happens on advanced disclosure (Box 3) which con-cerns discretionary information.

How might this be achieved?

MP: Many suggestions have been put forward on how to address the problems, including:

  • time bars
  • division of offences
  • formulae for a minimum period before consideration of removal

However, at the moment the position remains that everything must be disclosed.

What does it mean for employers?

MP: This could cause headaches for HR but things remain the same until any appeal is decided. Rather un-helpfully this case will force employers to make a judgment call at this stage.

KR: The government argued that Parliament has left it to the employer to assess the relevance of a convic-tion or caution, and the employer can be trusted to take into account matters such as the:

  • seriousness of the offence
  • age of the offender at the time

Page 3

  • lapse of time since it was committed, etc

However, the court firmly supported the view that it is unfair to place the onus on the employer to decipher all of the information presented to them on a CRB check and that evidence suggests employers do not always handle and interpret the information correctly and fairly.

The possible impact on employers who carry out a criminal records check on all employees, regardless of contact with vulnerable persons or being employed in a particularly sensitive role, remains to be seen. Again, it is important to note the judgment makes it clear the decision is not to take effect until any application by the Secretaries of State for permission to appeal is determined by the Supreme Court.

What advice should be given to clients who are concerned about spent convic-tions/disclosing and convictions?

MP: Following this decision we have been inundated with queries. However, broad advice is incredibly diffi-cult as these matters are by their nature fact specific.

Two key topics arise from this judgment when advising clients

Disctretionary disclosure
This remains an ongoing problem as it is based on suspicions and soft intelligence.

Minor convictions
It is important to assess whether they fall within a scheme where they are considered minor and should be disregarded. It is important to remember that the law remains the same pending the appeal from the Secre-tary of State.

What happens next?

MP: If the appeal fails the government will either continue in breach, in which case they will be taken to the European Court and face a possible fine, or emergency legislation will have to be put in place. This is not an appealing option to the government, which is why they are seeking to appeal.

Interviewed by Guy Skelton.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.