A UK High Court has ruled that the Government’s criminal records disclosure scheme is incompatible with Article 8 of the Human Rights Act.
The judgment relates to the rule that anyone who has more than one conviction – regardless of the minor nature of the offences, the length of time ago they were committed and the person’s circumstances at the time – is required to disclose them forever when applying for certain types of work. The challenge related only to minor offences, and no challenge was made to the rules requiring disclosure for those who have been convicted of violent or sexual crimes.
The case taken by Liberty on behalf of their client P, involved a woman who had committed two minor offences whilst suffering from an undiagnosed mental illness over 16 years ago. She had stolen a 99p book from a shop and then subsequently failed to return for her hearing, thus committing a second offence under the Bail Act 1976. In light of these past offences she was obliged to disclose her criminal record and her medical history to potential employers in order to explain the nature of the convictions. These two convictions were now preventing her from gaining voluntary employment in a school with the view to seeking a position as a teaching assistant. Her case was heard alongside that of another claimant, A, who was convicted of two minor thefts in 1981 and 1982 when aged 17 and 18. Liberty argued that the system is arbitrary and disproportionate, and is in need of urgent reform to allow for greater consideration of individual circumstances.
Lord Justice McCombe and Mrs Justice Carr declared the rule was unlawful and contrary to Article 8 (the right to a private and family life). Lord Justice McCombe stating "where the rules are capable of producing such questionable results, on their margins, there ought, it seems to me, to be some machinery for testing the proportionality of the interference, if the scheme is to be in accordance with the law". He further asked the government to offer submissions to address the visible faults in the system, in advance of the court making its final order. In the meantime, the scheme will continue to operate.
Christopher Stacey, Co-Director of Unlock, a charity for people with criminal records, said: “the current system doesn’t go far enough: it is blunt, restrictive and disproportionate. These shortcomings have today been recognised by the High Court and we are excited about the improvements which will follow. They will not only benefit those with convictions to move on positively with their lives but it will also contribute towards building a fairer and more inclusive society.”
Draft legislation on similar issues in Ireland is being considered in the form of the Spent Convictions Bill and is due for further debate this week before the Dáil. The Irish Penal Reform Trust has been advocating for changes to the law in this area and further commentary can be accessed here.
Click here for the Liberty Press Release.