Record breakers

For as long as there have been police, there have been police records. The Bow Street Runners had a register clerk to catalogue London’s 18th century prigs, pickpockets and panders. From 1749, the runners’ register was used to form the Universal Register Office, the forbear of today’s Disclosure and Barring Service ?(DBS), where the characters of prospective servants could be studied by employers. Policing and labour exchange have, therefore, long been entwined. But will individuals’ misdemeanours now be forgiven by being forgotten?

The Court of Appeal’s decision in T [2013] EWCA Civ 25 might see an end to indiscriminate and lifelong disclosure to employers of spent criminal records. And? the European Court of Human Rights’ decision in MM v United Kingdom (Application No 24029/07), The Times, January 16, 2013, might, ultimately, see records’ selective deletion. But will the Supreme Court agree with the Court of Appeal and the Strasbourg Court?

T is a perfect example of how iniquitous the criminal records system can be. At 11, T was issued two warnings for bicycle thefts. In many jurisdictions he would have been incapable of committing any crime at 11. His record will be stored for 89 years from the date the warnings were issued. This is no mere irritation to T. He applied at 19 for a sports studies degree. The course required that he submit a criminal records certificate. After the certificate revealed his heinous offences, it took the intervention of his solicitors for the university to take him on merely to study to become a sports teacher. T decided that, rather than let future disclosures scupper his career, he would challenge the lawfulness of this country’s disclosure system.

Commit a recordable offence, like bicycle theft, and the police will retain your record until your 100th birthday. Disclosure of that record though is subject to an archival amnesia: section 4 of the Rehabilitation of Offenders Act (ROA) 1974 allows those with spent convictions to claim lawfully that they are of good character, with a spent conviction not being a “proper ground for dismissing or excluding a person” from employment.

A right to privacy

However, many forms of employment are exempted from the protections guaranteed under section 4 of the ROA 1974. Exempt positions under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 range from doctors and solicitors to child minders and traffic wardens. Applicants for such jobs require criminal records certificates. And under sections 113A and 113B of the Police Act (PA) 1997, a criminal records certificate issued by the DBS (formerly the Criminal Records Bureau (CRB)) must contain all recorded spent and unspent convictions and cautions. Moreover, if asked whether you have a long-spent conviction, you are under a duty to tell exempted employers. Fail to disclose your misdemeanour and you risk losing your job and being prosecuted for fraud. And disclosure of even historic, trivial or irrelevant criminality represents a ‘killer blow’ to one’s chances of securing work: per Lord Neuberger in L [2009] UKSC 3 at [75].

Life really does mean life when it comes to criminal records. But T might bring to an end this life sentence.

T’s case was first heard last year by Parker J sitting at the Administrative Court: [2012] EWHC 147. Mandatory disclosure through criminal records certificates of his trifling warnings, T argued, violated article 8. He further asserted that the 1975 Order, which requires that he himself disclose his crimes to exempted employers, was likewise a disproportionate encroachment on his privacy and, therefore, ultra vires. Although greatly troubled that ‘a system that allows no exceptions imposes a very heavy cost in terms of effect on the fundamental rights [to privacy]’, Parker J felt constrained by what he believed were binding words from the Supreme Courts in L (supra) that the PA 1997 was article 8 compliant.

But for L, Parker J would have declared the PA 1997 incompatible with the right to privacy. With evident reservations, Parker J dismissed T’s application but not before rather oddly upholding the 1975 order’s lawfulness by arguing that the state was under no duty to protect employees themselves from having to disclose their trivial or historic spent convictions and cautions to certain employers.

On T went to the Court of Appeal, to be joined by JB, a prospective carer who, when in her early forties, shoplifted from Superdrug and was duly cautioned, and AW, a prospective army recruit who at 16 committed robbery and manslaughter with her then boyfriend. All three essentially rehearsed T’s arguments before the Master of the Rolls and Davis LJ.

The Master of the Rolls held that the comments in L that had snagged Parker J were, in fact, mere obiter. After freeing himself from Parker J’s mind-forged manacles on L, the Master of the Rolls declared that the blanket policy of disclosure of police records for inclusion on criminal records certificates was incompatible with the right to privacy where it led to employers being informed of petty, irrelevant, ancient and juvenile crimes.

Significantly the Master of the Rolls went on to hold that Parker J’s conclusion that the 1975 order was not ultra vires led to “the absurd result… that the state cannot disclose the conviction or caution to the prospective employer, but the individual must do so”.

JB, who, unlike T, was not a child when she committed her offence, was likewise successful in her challenge of the PA 1997 and the 1975 order. However, AW’s appeal was dismissed. The Court of Appeal determined that the gravity of her offences meant that her convictions could lawfully be disclosed without review.

?‘Lawful’ disclosure

T is of momentous significance. Were the Supreme Court to agree with the Court of Appeal, a finding that the 1975 order was ultra vires would precipitate the partial collapse of the DBS system because, without ‘exemptions’ to the ROA 1974, employers cannot ask about spent convictions or cautions, institute disciplinary proceedings for non-disclosure or refuse positions because of spent convictions; and no prosecutions for failing to reveal spent convictions could commence. Unsurprisingly, the government intends to appeal to the Supreme Court.

However, T relates only to the proportionality of the disclosure system. MM, a chamber decision published shortly before T, presents a far deeper criticism of the criminal records system.

In MM, the disclosure of the 61-year-old applicant’s caution for child abduction was held not to be ‘in accordance with the law’ because, in the absence of a system to review disclosures, there was, in essence, no ‘law’ regulating what was an arbitrary blanket policy. The Strasbourg court concluded that it need not even consider the legitimacy of the UK’s aims in maintaining its criminal records system or that system’s necessity ?or proportionality: the system simply lacked a sufficient quality of legality to be considered ‘law’.

And it was not only the disclosure ?system that the chamber was displeased with: the underlying retention of the records was also deemed not to be “in accordance with the law”. MM would seem, therefore, to go further than T. Were records actually deleted, bad character applications and sentencing decisions would be affected: ?how can the Crown Prosecution Service know of a previous conviction if the data has been removed?

The Supreme Court will, when it comes to consider T’s case, find itself in an unusual position. From below, there is a Court of Appeal judgment in T that appears to be in line with the Supreme Court’s own reasoning on the blanket policy on lifelong notification requirements for sex offenders in F [2010] UKSC 17. From above, the Supreme Court has the Strasbourg Court’s damning assessment of the criminal records system in MM.

Will the Supreme Court agree with the Court of Appeal? Or will the Supreme Court accept that commission of a recordable offence justifies the lifelong disclosure regime? The Supreme Court might again assert its independence from the Strasbourg Court and spurn MM. In Horncastle [2009] UKSC 14, the Supreme Court firmly demonstrated that it merely needed to consider the European Court of Human Rights’ judgments on English law and need not slavishly follow them. The Supreme Court might similarly depart from the European Court of Human Rights over criminal records.

Should the government’s appeal to ?the Supreme Court be unsuccessful, what next? Various complex filter systems have been proposed from automated weeding ?of offences according to age, type or ?sentence to analysis of each individual disclosure’s relevance.

Whatever parliament does, T and MM are likely to set in motion the largest overhaul of the criminal records system since the Soham murders. T and MM are truly record breaking cases.