Off the record

In 2013, the government introduced changes to the disclosure of criminal records that were intended to allow individuals to put their pasts behind them. Four years later, the Court of Appeal has concluded in R (o.a.o. P, G, W and Krol) v Secretary of State for the Home Department & ors [2017] EWCA Civ 321 (P & ors) that ex-offenders still face the unnecessary revelation of old and often irrelevant records when applying for jobs.

Should there now be independent reviews of the disclosure of criminal records? And ought this country now to permit the deletion of stale cautions and convictions?

Arbitrary disclosure system

The current criminal records system was formulated in 2013 in response to a single question: is it right for a man to be haunted for the rest of his working life by a bicycle theft he committed at the age of 11?

The Court of Appeal and Supreme Court both resoundingly answered ‘no’ to this question in the seminal case of T [2013] EWCA Civ 25 and [2014] UKSC 35.

Lord Reed, when giving the Supreme Court’s majority decision in T, concluded that, as the disclosure of criminal records fell within article 8’s definition of private life, the revelation of an individual’s criminal past must first be ‘in accordance with the law’ before the necessity of protecting the public by the disclosure of an offence fell to be considered. Disclosures would not be ‘in accordance with the law’ simply because the state could point to a publicly available set of rules that regulated the vetting procedures for positions of trust and jobs involving children. For vetting rules to have the quality of legality they must not be arbitrary; and the lifelong mandatory disclosure of old, trivial, and irrelevant criminal records on standard and enhanced criminal records certificates was, in Lord Reed’s view, wholly arbitrary and, consequently, not in accordance with the law.

The arbitrariness of the disclosure system identified in T was supposed to have been remedied by the government’s creation of the ‘protected’/‘filtered’ record in 2013. Under the new disclosure regime, spent cautions and convictions would be automatically ‘protected’/‘filtered’ after a fixed period and would not need to be included on criminal records certificates issued by the Disclosure and Barring Service. However, records involving a ‘listed offence’ (ranging from ABH to rape and murder) could not, in accordance with ‘the serious-offence rule’, be protected, regardless of the crime’s age or context; nor could any conviction that either resulted in a prison sentence or was not one’s only conviction (‘the multiple-conviction rule’) be filtered.

It was the lawfulness of the serious-offence and multiple-conviction rules that president of the Queen’s Bench Division Sir Brian Leveson examined in P & ors.

Serious-offence and multiple-conviction rules

The absurdity of the multiple-conviction rule was well illustrated in P & ors by the case of P, who had a long-spent conviction for shoplifting and a connected record for failing to appear before the court. P was, at the time of her convictions, suffering from undiagnosed schizophrenia. Fifteen years later, the multiple-conviction rule led to the disclosure of her trivial records and prevented her obtaining work as a care assistant. But a pattern of offending on P’s part could not be shown and, in any event, her stale records had been generated during a period of acute (and untreated) mental ill health. Mandatory disclosure of the records simply because P had more than one conviction was, Leveson P concluded, wholly arbitrary in the absence of an independent review mechanism and could not be said to pass article 8(2)’s legality test (see paragraph 44).

Similarly, the operation of the ‘serious-offence rule’ for P & ors’ claimants G and W, who both had juvenile records for ‘listed offences’, was not ‘in accordance with the law’. W, who when 16 received a conditional discharge for ABH, still faced disclosure of his record at the age of 47 under the ‘serious-offence rule’, as did G, whose reprimand when 13 for having (non-coercive and experimental) anal intercourse with two boys aged nine and ten had prevented his employment in adulthood at a local library. Mandatory disclosure of both G’s and W’s offences on criminal records certificates without regard to the circumstances of their offences and their ages at the time their crimes were committed meant that the ‘bright line’ drawn by the ‘serious-offence rule’ could not be said to be anything other than an arbitrary cut-off point (see paragraph 45).

Leveson P concluded that Lord Reed in T had not, contrary to the claimants’ assertions, made an independent review mechanism a necessary condition of a lawful disclosure regime. A series of ‘bright lines’ could be drawn that would safeguard individuals from arbitrary disclosures of criminal records. However, when additionally determining that the disclosure of P’s, G’s, and W’s records had been unnecessary for public protection, Leveson P warned that ‘without some mechanism to ensure that disclosure is proportionate […] it is difficult to see how challenges of the type raised in these cases can be avoided. […] If left to the courts as the scheme is presently devised […] it will generate many challenges which will require resolution on a case-by-case basis: such an approach cannot possibly be in the public interest.’

The government has repeatedly contended, though, that an individual review mechanism is unworkable. That claim appears untenable when new regimes in Northern Ireland and Scotland are considered.

Independent review scheme

Following the Northern Irish Court of Appeal’s disapproval of the multiple-offence rule in Re Gallagher [2016] NICA 42, an independent review scheme now governs the disclosure of most spent records during safeguarding vetting in the province. And last year Scotland introduced judicial oversight of the disclosure of convictions that fall outside the automated ‘protected convictions’ scheme. (Even with such a review mechanism, a ‘bright line’ excluding some offences from the 2016 Scottish scheme has led to a successful article 8 challenge before the Outer House of the Court of Sessions in P(AP) v Scottish Ministers [2017] CSOH 33, which concerned a 42-year-old man’s record for ‘lewd, indecent, and libidinous practices’, namely masturbating in a bush and exposing himself to his sister when 14.)

It is not only the courts that have criticised England’s 2013 disclosure regime. The Law Commission’s January report ‘Criminal Records Disclosure: Non-filterable Offences’ (Law Com. No 371) concluded that the 2013 system is in urgent need of reform. A thicket of statutory provisions and the operational entanglements of the ‘filtering’ system leave lay persons (and even the police and DBS) without clarity as to what ought and ought not to be disclosed.

The Law Commission will likely conduct a wider review into criminal records soon and has indicated that areas for future analysis include the current rule about disclosing all convictions that resulted in a custodial sentence (whether immediate or suspended), the disproportionate effect on youths of the present system, and, of course, the desirability of an independent review mechanism to regulate disclosures.

The question of an independent review mechanism will be examined by the Supreme Court when it hears the cases of P, G, and W from P & ors later this year or in 2018.

Retention of records

The final claimant in P & ors, Krol, is unlikely to have her appeal heard by the Supreme Court. The Krol decision within the Court of Appeal judgment in P & ors is perhaps of most interest not for its effect on the disclosure of records but because of its potential to affect the retention of criminal records.

Krol was cautioned for an ABH on her three-year-old daughter in 2007. ABH, as a listed offence, fell outside the filtering scheme. Krol applied to the police for the deletion of her record to obtain a clear criminal records certificate. The police’s refusal to delete her caution was, according to Krol, a violation of her article 8 rights as it effectively prevented her from obtaining work as a psychologist.

Leveson P noted in P & ors that one solution for those with cautions (but not, according to Leveson P, convictions) that fall outside the current, or any future, filtering scheme would be to apply for their deletion (see paragraphs 67 to 71). If there is no record, an offence cannot be disclosed by the police.

Leveson P swiftly concluded, however, that the very young age of Krol’s victim and the fact that the child had eventually been taken into care rendered the caution’s retention not only ‘in accordance with the law’ but necessary and proportionate.

A claim for judicial review, R (o.a.o. R) v National Police Chiefs’ Council & anor (CO/2851/2016), currently before the Administrative Court might, however, clarify when lawfully administered juvenile cautions for non-violent, non-sexual offences should be expunged and might also determine the fate of those who are, at present, totally outside the ‘protected’ system (those applying for policing or prison jobs, firearms licences, etc).With a future Law Commission report, P & ors in the Supreme Court, and R in the Administrative Court, an overhaul of the criminal records system in the near future seems likely.

Richard Easton is a solicitor at Sonn Macmillan Walker and represents the claimant in the Administrative Court case of R (o.a.o. R)

@SMW_Law www.criminalsolicitor.co.uk