The Supreme Court has ruled that mandatory disclosure of (a) all convictions where an individual has multiple convictions and/or (b) youth cautions (including warnings and reprimands issued under an old regime) is disproportionate and incompatible with an individual’s right to private life under Article 8 of the European Convention on Human Rights. This decision follows the Court of Appeal ruling in 2017 and deals with the tension between the Home Office and individuals affected by the disclosure regime – at least for now.
In general, only unspent convictions and cautions need to be disclosed to prospective employers. However, certain activities, roles and professions, including those working with children and vulnerable adults, are eligible for a standard or enhanced disclosure check (in some cases with a check of the barred list for children and/or vulnerable adults) from the Disclosure and Barring Service (“DBS”).
These checks disclose spent and unspent convictions as well as cautions, reprimands and final warnings. Enhanced DBS checks can also include information held by local police if considered relevant to the role and, if a check of the barred list(s) is undertaken, whether an individual is barred from working with children and/or vulnerable adults.
Under the categories of the current scheme, mandatory disclosures of spent convictions and cautions include those falling within specific categories of offences (broadly those of a violent/sexual nature), custodial sentence convictions and all convictions/cautions where a person has more than one conviction. Disclosure by individuals themselves as part of the application process is governed by the same principles.
The four individuals in the case faced similar circumstances; all had either applied for or were seeking roles involving contact with children and/or vulnerable adults and had job offers withdrawn following DBS checks or believed such disclosures would negatively impact their ability to find future employment.
- P, who was 28, homeless and suffering from undiagnosed schizophrenia at the time, received a caution and two convictions in 1999 relating to two thefts and failure to surrender to bail.
- W was convicted and received a conditional discharge for assault occasioning actual bodily harm relating to a fight he had on the way home from school in 1982.
- G received 2 youth reprimands for sexual assault in 2006 involving 2 younger boys. The mitigating circumstances were considered exceptional as the sexual activity appeared to be consensual and a case of sexual curiosity involving ‘dares’.
- Lorraine Gallagher was convicted for a total of 6 counts across 2 incidents in 1996 and 1998 relating to her failure to wear a seatbelt and carrying a child under 14 years old without a seatbelt.
In each case, the relevant convictions and cautions were “spent” under the legislation designed for the rehabilitation of ex-offenders.
In order to be compatible with Article 8, the regime must have the quality of law and must be proportionate. The Supreme Court held that the rules governing disclosure by both individuals and by the DBS possess the quality of law as they are ‘highly prescriptive’ and the categories do not allow for any discretion to be exercised.
The regime, however, fell down at the proportionality hurdle. The court held that although pre-defined categories of disclosure are acceptable, the multiple conviction rule fails to take into account the nature of conviction, the number of occasions involved and other relevant factors. It was further noted that youth cautions (which replaced youth warnings and reprimands) are not criminal charges and are meant to be rehabilitative and preventative means of acknowledging the offence. For them to have a negative effect on an individual’s later life has the completely opposite effect.
In light of this, the court issued a declaration of incompatibility in relation to the cases of P, G and Ms Gallagher who were affected by the multiple conviction rule and disclosure of youth cautions. As W’s conviction was disclosed on the basis that it fell within a specified category of violent offence, this was not deemed disproportionate.
So, what’s next? Nothing changes immediately. The declaration of incompatibility essentially passes the baton back to Parliament to work out the best way of ensuring the disclosure regime is compatible with the right to private life. It is likely that the case will result in legislative amendments. However, in the midst of Brexit, it is fair to say that this, although important, may not be the subject of Parliamentary time in the short term.
However, it is to be hoped that Parliamentary time is made available as the potential impact this judgment may have on individual lives cannot be downplayed; employment opportunities for individuals like Ms Gallagher, P and W which were once inaccessible because of past convictions, cautions etc. may now potentially be available.
Ultimately, cases in which disclosure checks or wider regulatory and legislative changes on safeguarding are discussed remind us this is a complex area and striking the balance between the competing public interests of the protection of children and vulnerable adults against the rehabilitation of previous offenders will remain difficult. Brexit or no Brexit or whether a new law is introduced soon or in years’ to come; one thing is for sure, safeguarding will remain a hot topic for charities for the foreseeable future and charities must remain alive to such issues and deal with vetting employees and volunteers in a careful way, avoiding bright line policies in all but the most serious cases.
In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland); R (P, G & W) v Secretary of State for the Home Department; R (P) v Secretary of State for the Home Department .
Posted on 12/03/2019 in BWB PublicationsBack to Knowledge