Communicated on 19 February 2021 Published on 8 March 2021

FOURTH SECTION

Application no. 51861/13 A.W. against the United Kingdom lodged on 19 July 2013

STATEMENT OF FACTS

The applicant, Ms A.W. (anonymity has been granted), is a British national, who was born in 1986 and lives in Sheffield. She is represented before the Court by Howells Solicitors, lawyers based in Sheffield.

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 2003 the applicant was convicted of manslaughter and robbery and sentenced to five years ’ imprisonment. She was sixteen years old at the time of the offence. Pursuant to rehabilitation of offenders legislation her conviction will never become spent.

The applicant wishes to join the army but is unable to do so as she has an unspent conviction. She claims that she has also had difficulty finding other employment because of her unspent conviction.

On 8 February 2011 she issued proceedings for judicial review challenging the compatibility of the legislation governing the rehabilitation of offenders with Article 8 of the Convention. The High Court refused permission on the papers on 21 March 2011. Permission was again refused after an oral hearing on 16 June 2011. The judge found that Article 8 was not engaged as there was no interference with the applicant ’ s rights. He further considered that there was no real prospect of success in showing that the legislation was disproportionate.

Permission to appeal was refused by the Court of Appeal on 14 October 2011 on the papers. It was again refused on 29 January 2013 following an oral hearing. The court noted that the applicant had committed a very serious offence and would have undoubtedly received a longer sentence but for the fact that she had only been sixteen years old at the time of the offence. It did not expressly address the applicability of Article 8 to the facts of the applicant ’ s case but appeared to proceed on the basis that Article 8 was engaged. It considered that Parliament had been entitled to take the view that some offences were so serious that they should never be regarded as spent. This was not a blanket policy, since it distinguished between offences that were very serious and those that were not. The court concluded that Parliament ’ s response to this question of social policy was not disproportionate.

The Rehabilitation of Offenders Act 1974 provides for eligible convictions to become spent after a specified period of time , known as the “rehabilitation period”. The effect of rehabilitation is that the person is treated for all purposes in law as a person who has not committed, or been charged with, prosecuted for or convicted of, the offence in question. If asked about previous convictions, a person is to treat the question as not relating to spent convictions and may frame his answer accordingly.

The rehabilitation period depends on the sentence imposed, rather than the nature of the offence. Prior to 10 March 2014, the 1974 Act provided that sentences of imprisonment for over thirty months were excluded from the scope of the Act, with the consequence that relevant convictions never became spent. The rehabilitation period for sentences of imprisonment of between six months and thirty months was ten years, or five years where the offence had been committed by a person under the age of eighteen. The rehabilitation period for sentences of imprisonment of less than six months was seven years, or three years where the offence had been committed by a person under the age of eighteen.

Following amendments to the legislation which entered into force on 10 March 2014, only sentences of more than forty-eight months fall outside the scope of the Act. The rehabilitation period for sentences of imprisonment of between thirty and forty-eight months is seven years, or forty-two months where the offence was committed by a person under the age of eighteen. The rehabilitation period for sentences of imprisonment of between six months and thirty months is forty-two months, or twenty-four months where the offence was committed by a person under the age of eighteen. The rehabilitation period for sentences of imprisonment of less than six months is twenty-four months, or eighteen months where the offence was committed by a person under the age of eighteen.

The United Nations Convention of the Rights of the Child (“CRC”) applies to everyone below the age of eighteen years, unless under national law majority is attained earlier. Article 40(1) of the Convention provides:

“States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child ’ s sense of dignity and worth, which reinforces the child ’ s respect for the human rights and fundamental freedoms of others and which takes into account the child ’ s age and the desirability of promoting the child ’ s reintegration and the child ’ s assuming a constructive role in society.”

In its General Comment No. 10 (2007), Children ’ s Rights in Juvenile Justice , the UN Committee on the Rights of the Child underlined that the protections guaranteed by the CRC in the context of the criminal justice system applied to everyone under the age of eighteen at the time the offence was committed. It noted:

“29. The Committee reminds States parties that, pursuant to article 40 (1) of CRC, reintegration requires that no action may be taken that can hamper the child ’ s full participation in his/her community, such as stigmatization, social isolation, or negative publicity of the child. For a child in conflict with the law to be dealt with in a way that promotes reintegration requires that all actions should support the child becoming a full, constructive member of his/her society.”

The Committee addressed specifically the issue of criminal records for juvenile offenders:

“67. The Committee also recommends that the States parties introduce rules which would allow for an automatic removal from the criminal records of the name of the child who committed an offence upon reaching the age of 18, or for certain limited, serious offences where removal is possible at the request of the child, if necessary under certain conditions (e.g. not having committed an offence within two years after the last conviction).”

COMPLAINT

The applicant complains under Article 8 of the Convention that her previous conviction in respect of an offence committed when she was sixteen years old will always have to be declared to prospective employers and that she will never be fully rehabilitated. She underlines the absence of any provision for review or for individuals to make representations as to why, in their particular cases , a conviction should become spent. She argues that in her case there are good reasons why her conviction should become spent, namely her age at the time of the offence, the role she played in the offence, the professional assessment of her low risk of reoffending and her progress while in detention and on licence.

QUESTION TO THE PARTIES

In light of the provisions of the Rehabilitation of Offenders Act 1974 and given, in particular, the applicant ’ s age at the time the offence was committed, has there been a violation of her right to respect for her private life under Article 8 of the Convention?