Is a caution or conviction ever truly spent?
In R (T) v Secretary of State for the Home Department [2014] UKSC 35, the Supreme Court ruled that the automatic disclosure of many cautions and spent convictions is unlawful and incompatible with Article 8 of the European Convention on Human Rights. Given that the Government has already changed the disclosure rules pending the appeal, what relevance does this decision hold? Briony Ballard explains.
Recent years have seen many legal challenges to the operation of the disclosure provisions in enhanced criminal record certificates.
However, in T, the Supreme Court has tackled head-on the broader issue of compatibility with Article 8 of the indiscriminate disclosure of spent convictions, cautions and warnings in circumstances legislated for by (1) the Rehabilitation of Offenders 1974 (Exceptions) Order 1975 (the 1975 Order), and (2) Part V of the Police Act 1997 (the 1997 Act).
Background
Prior to the Rehabilitation of Offenders Act 1974 (the 1974 Act), if an individual was asked about their criminal record at a job interview they could choose to answer or not. If they answered they had to do so truthfully or face potential prosecution for obtaining employment by deceit. Following the 1974 Act, in many cases an individual is excused from disclosing any spent conviction and is therefore not liable for any failure to do so. Furthermore, a prospective employer is not entitled to make any decision prejudicial to the individual by reference to spent convictions or to any failure to disclose them. This principle applies to cautions, warnings or reprimands, which are spent as soon as they are given.
However, the 1975 Order (which came into effect on the same day as the 1974 Act) created exceptions to the protection from disclosure of spent convictions, cautions and warnings when questions were asked when recruiting to specified roles requiring trust or sensitivity, such as caring for children or the elderly.
Some 20 years later, the 1997 Act came into force. It created a system of enhanced criminal records checks and criminal record certificates, containing information held on the Police National Computer, produced to employers for job applicants for sensitive roles. In such situations, disclosure was automatically made of every relevant matter recorded. A relevant matter was any conviction or caution, whether spent or not.
The facts
At the age of 11, T (the first appellant) received two warnings about the theft of a bicycle. He had no other criminal record. When T applied for a job with a football club and then later for a place on a sports study course, the warnings he had received as a boy of 11 were automatically disclosed. Under the legislation as it then stood the warnings would be disclosed to any prospective employer for the rest of his life for any job for which an enhanced criminal record certificate was necessary. Since he could not obtain a clean certificate his prospects of obtaining a job in his chosen field would be affected. This was despite it being obvious that the theft of a bicycle when he was 11 had no bearing on whether he might, as an adult, present a danger to children.
The second appeal raised similar issues. The then 41-year-old JB had received a caution for theft of false fingernails from a shop some 13 years previously. Like T, JB had no other relevant matters recorded. On completing a training course for employment in the care sector she had to obtain an enhanced criminal record certificate. This disclosed the caution. The training organisation then told her that, as a result, it was unable to put her forward for any employment in the care sector.
Both claimed that the references in their enhanced criminal record certificates to their cautions violated their right to respect for private life under Article 8. T also asserted that his obligation to disclose the warnings violated the same right. Both T and JB were successful in the Court of Appeal, which made declarations that the relevant provisions of the 1997 Act were incompatible with Article 8. The Court of Appeal in T held that not only was the 1975 Order incompatible with Article 8, it went beyond the powers set out in the Rehabilitation of Offenders Act 1974 and so was ultra vires.
The Home Secretary (responsible for the 1997 Act) and the Secretary of State for Justice (responsible for the 1975 Order) appealed to the Supreme Court. The Supreme Court:
(1) unanimously dismissed