Irish Penal Reform Trust

UK: Supreme Court finds criminal records disclosure regime in breach of ECHR

29th January 2019

The UK Supreme Court has released its judgement regarding the criminal records disclosure regime in England and Wales, governed by the Rehabilitation of Offenders Act 1974. The court has found that both the multiple convictions aspect of the regime, and the requirement to disclose certain childhood convictions or cautions, are in breach of Article 8 of the European Convention on Human Rights (ECHR). The multiple convictions rule provides that where a person has more than one conviction, it will be considered as a relevant matter for disclosure in a criminal record certificate. The court held that these aspects of the disclosure regime are not proportionate.

In the course of its judgement, the court considered the possibility of abandoning the category-based disclosure aspect (the exclusion of certain offences from being considered spent in certain circumstances) in favour of a system which allows for examination of the facts in individual and particular cases. The majority of the court held, however, that these categories are not disproportionate. Rather, it stated that the question is whether the category itself is proportionate, and not whether it impacts disproportionately on a particular individual case.

The dissenting judgement of Lord Kerr considers that disclosing apparently irrelevant and ancient criminal convictions to prospective employers is undermining the aims of the 1974 Act. In his judgement, he refers to the system in Northern Ireland which provides for an independent review mechanism in regards to some criminal record disclosures and highlights the potential for this kind of scheme across the UK more broadly, despite the opinion in the majority judgement that this would be an unrealistic prospect in a large jurisdiction like England and Wales.

The Supreme Court judgement can be read with interest from an Irish policy perspective as the Criminal Justice (Rehabilitative Periods) Bill 2018 has been proposed to potentially amend both the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 and the National Vetting Bureau (Children and Vulnerable Persons) Act 2012.

The judgement also highlights the lack of clarity relating to misinformation and uncertainty for those with criminal convictions seeking employment, and knowing whether they must disclose their past offences.

Read the Supreme Court judgement here.

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