The UK Supreme Court has recently ruled that government rules regarding spent convictions are both unlawful and incompatible with Article 8 of the European Convention on Human Rights (ECHR). “Spent convictions” refers to the practice of allowing certain types of (usually minor) criminal convictions to be ignored after a rehabilitation period.
In R (On the application of T and another) (Respondents) v. Secretary of State for the Home Department and another (Appellants), the first respondent T relied on the UK’s spent convictions legislation to challenge the disclosure of a police caution he received aged 11 for bicycle theft. This disclosure had denied him employment in jobs that involved contact with children. The second respondent JB was given a caution for shoplifting in 2001, and in 2009 was denied access to a care sector training programme after the caution was revealed on an Enhanced Criminal Record Certificate.
UK law says that certain types of convictions, including cautions, do not have to be disclosed by a person when s/he is asked about their criminal record. However, there are exceptions where the person is applying for certain types of jobs, such as those involving children and vulnerable adults. In that situation, a complete disclosure of all entries on the police database can be made.
The Supreme Court held that the disclosure of the cautions for both of the respondents was incompatible with Article 8 of the ECHR, and as a result interfered with their guaranteed right to a private life. The general rule for an interference with an ECHR right is that the interference must be in accordance with the law. Lord Reed said that the UK’s spent convictions legislation was not in accordance with the law and was thus incompatible with the ECHR. This was because there were not proportional safeguards contained within the legislation, given its blanket disclosure approach when spent convictions were disclosed.
Click here to read the case in full.
Click here to read an analysis of the case on the UK Human Rights Blog.
In Ireland, the Criminal Justice (Spent Convictions) Bill 2012 is expected to be passed by summer 2014. Ireland is currently the only country in the EU that has no laws on the disclosure of spent convictions. Click here to read an Irish Penal Reform Trust (IPRT) press release on the issue, which includes links to a position paper and other documents analysing the bill.
You can read the text of a presentation on the Irish position recently given by Niall Nolan BL at PILA Legal Seminar. In this paper, he identifies some problematic elements of the Spent Convictions Bill and National Vetting Bureau (Children & Vulnerable Persons) Act 2012. This paper makes reference to the Court of Appeal decision in the T & JB decision discussed above.