UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Nandini Bulchandani and Daniel Rudd (Matrix)

Introduction

This is the latest chapter in the saga concerning the enhanced criminal records certificate regime. How much about a person’s past criminal history is an employer entitled to know?

Background

Under the Rehabilitation of Offenders Act 1974, a person is not in general required to disclose ‘spent’ convictions. However, there has long been a concern about persons working in certain professions or areas, such as those involving the care of children or vulnerable adults. Accordingly, the Rehabilitation of Offenders Act 1974 (Exemptions) Order 1975 removed the protection of the 1974 Act in certain cases. Over the years, particularly in response to well-publicised cases involving the murder, abuse or abduction of children, the scope of the exemptions have been extended. Accordingly, for example, an employer in the care sector is entitled to ask applicants about their full criminal history and to expect to be told about it.

A similar regime exists in Northern Ireland, under the Rehabilitation of Offenders Order (NI) 1978 and the Rehabilitation of Offenders (Exceptions) Order (NI) 1979.

Part V of the Police Act 1997 reinforced this system by providing for enhanced criminal record certificates (‘ECRCs’). These are issued by the Disclosure and Barring Service in England and Wales, by Access NI in Northern Ireland and by Disclosure Scotland, for the purposes of testing the suitability for a person for work in the same sorts of areas which are exempted from the rehabilitation of offenders regime. An ECRC may include, among other things, a person’s ‘spent’ convictions and cautions.

Initially, both schemes bit on all criminal convictions and cautions. This sometimes had grossly unfair consequences because, as the Supreme Court recognised in R (L) v Commissioner of Police for the Metropolis [2010] 1 AC 410, although the systems are in principle designed to allow employers and others to make informed decisions about appointments, in reality ‘a prospective employer may well feel it safer, particularly in the present culture, which, at least in its historical context, can be said to be unusually risk-averse and judgmental, to reject’ any person with an adverse ECRC.  For example, an 18-year-old who had been cautioned at the age of 11 in connection with the theft of a bicycle was refused a place on a sports degree course which would have brought him into some contact with children.

Accordingly, in R (T) v Chief Constable of Greater Manchester Police [2015] AC 49, the Supreme Court held that the extent of both regimes breached Article 8 of the European Convention on Human Rights. The disclosure in an ECRC of all criminal convictions and cautions was not just disproportionate, but was not even ‘in accordance with the law’. This was because – as a result of the cumulative effect of the failure to draw any distinction on the basis of the nature of the offence, the disposal of the case, the time which has elapsed or the relevance of the disclosure to the employment in question and the absence of any mechanism for an independent review of the disclosure – the law did not have sufficient quality to avoid arbitrariness. The similar exemptions to the 1974 Act were also disproportionate.

Shortly before the T case reached the Supreme Court, no doubt in anticipation of the result, the two regimes were altered. Now, not all convictions and cautions fall within their scope. Where a person has just one conviction, it must be disclosed in an ECRC and will be exempted from protection under the 1974 Act only if it falls within specified categories, led to a custodial sentence or was given in the last eleven years (or five and a half years if the person was a child at the time). Similar restrictions apply to cautions. However, if a person has more than one conviction, all of them – whatever their seriousness, age, or relevance – must be disclosed as before. It is not difficult to imagine cases in which this, too, could lead to unfair results.

The present case

Lorraine Gallagher had a number of convictions for failing to wear a seatbelt. When she applied for a position with the Western Health and Social Care Trust, she disclosed some but not all of them. The Trust found out about the others through an ECRC and withdrew her offer of employment, citing breach of trust.

The Northern Ireland Court of Appeal held that the new regime was also in breach of Article 8, essentially for the same reasons as the Supreme Court in T. In its judgment ([2016] NICA 42), the Court did ‘not consider that there are any or any adequate safeguards… which would have the effect of enabling the proportionality of the interference to be adequately examined… In short, this is yet another instance of a blanket, automatic, inflexible approach to disclosure where there had been more than one offence’. (In fact, the Northern Ireland Assembly had since introduced a regime for an independent review of the proportionality of individual disclosures, but the Court did not comment on whether this would be sufficient to remedy the existing unlawfulness. A similar but not equivalent option exists in Scotland, but no such regime exists in England and Wales.)

A similar view was reached by the Divisional Court in R (P) v Secretary of State for Justice [2016] 1 WLR 2009 and by Blake J in R (G) v Chief Constable of Surrey Police [2016] 4 WLR 94. When the P case was subsequently appealed, the Court of Appeal in England and Wales agreed ([2018] 2 All ER 794), and this judgment has since been applied by the Divisional Court in R (QSA) v Secretary of State for the Home Department [2018] EWHC 407 (Admin). However, taking a position apparently contrary to that of the Northern Ireland Court of Appeal in Gallagher, the English Court of Appeal did not think that it was absolutely necessary for there to be a review of the proportionality of disclosure in individual cases provided that the line drawn by the legislation was itself more carefully and proportionately drawn.

The issue for the Supreme Court is ‘whether the statutory requirements in respect of an Enhanced Disclosure Certificate and parallel obligation of self-disclosure, such that the existence of more than one conviction will mean that all convictions, no matter their age or subject matter will be disclosable, is a breach of art 8’. If the Supreme Court holds that there has been a breach, hopefully the Court will also indicate whether an independent review of proportionality will be necessary to cure it or whether it would be sufficient to adopt a more appropriate ‘bright line rule’ in the legislation. A further interesting question which might arise is whether, if the overall system is not in accordance with the law, an individual disclosure may yet be lawful because, on its particular facts, it was justifiable: in HA v University of Wolverhampton [2018] ELR 272 Julian Knowles J accepted that it could be, but the contrary argument seems compelling.