On 14 November, the European Court of Human Rights (ECtHR), in MM v United Kingdom, ruled that the indefinite retention and disclosure of minor criminal records infringed Article 8 of the European Convention on Human Rights (ECHR) which protects private and family life.
The applicant was a grandmother from Northern Ireland who disappeared with her grandson following a family dispute and returned two days later with the child unharmed. She received a police caution for child abduction in 2000 which was due to be removed after five years. This caution was not removed due to subsequent policy changes in Northern Ireland whereby any convictions and cautions sustained in cases where the victim was a child would be kept on record for the offender’s lifetime.
The applicant was refused two employment opportunities as a family support worker due to disclosure of the caution. She complained that the indefinite retention and disclosure of the caution data and the impact it had on her employment chances infringed her Convention rights.
The ECtHR ruled that the current system had “no scope for the exercise of any discretion in the disclosure exercise” and that there were insufficient safeguards in the system. The Court did appreciate the need for comprehensive data relating to criminal matters, however, the indiscriminate and indefinite retention infringed on Article 8 in the absence of regulations which would set out the safeguards necessary.
At present in Northern Ireland, less serious criminal offences and cautions become spent after a certain period of time. However, anyone applying to work with children or vulnerable adults must undergo a criminal records check that will disclose both spent and unspent convictions and cautions. A Home Office spokesman said that they are reviewing this judgment and carefully considering the implications of the ruling.
The judgment will also have implications in the Republic of Ireland and is highly relevant to the Garda vetting legislation which is going through the Oireachtas at present.