Communicated on 19 February 2021 Published on 8 March 2021

FOURTH SECTION

Application no. 8296/13 A.H. against the United Kingdom and two other applications ( see list appended)

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

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

In 1995 the first applicant was convicted of false accounting and theft and received a six-month sentence of imprisonment. In 2005 the conviction became spent, pursuant to legislation on the rehabilitation of offenders.

In 2007 the first applicant began work through an employment agency. During his time with the agency they requested, and were provided with, at least three enhanced criminal record certificates (“ECRCs”) which disclosed his 1995 conviction. Disclosure was pursuant to the law then in force, which required all previous convictions, including spent convictions, to be disclosed on ECRCs. The last ECRC was dated 4 May 2012. The first applicant alleged that as a result of this disclosure, in July 2012 the agency stopped offering him employment.

On 29 May 2013 the rules concerning disclosure of criminal record information were amended. Pursuant to the new rules, the first applicant ’ s conviction remained subject to mandatory disclosure in an ECRC indefinitely because a custodial sentence had been imposed.

On 6 June 2013 he contacted the Metropolitan Police seeking the deletion of his spent conviction from his record. On 26 June 2013 he was informed that his record would be retained until he had reached 100 years of age and that the only potential appeal open to him was the submission of an application to this Court.

In October 1996 the second applicant was convicted of drugs offences and sentenced to three years ’ imprisonment on one count with a further one year ’ s consecutive imprisonment on another. In October 2002 he was convicted of driving offences and sentenced to a fine and disqualification from driving for 12 months. The offences were disclosed on an ECRC issued on 31 January 2013 pursuant to the law then in force. Following the entry into force of the amended rules on 29 May 2013, the second applicant ’ s convictions remained subject to mandatory disclosure in an ECRC because a custodial sentence had been imposed and he had more than one conviction.

At the time of the lodging of the application the convictions for drug offences were not spent because they were not eligible for rehabilitation on account of the length of the custodial sentence imposed. However, following amendment to the applicable legislation, which entered into force on 10 March 2014, the convictions have been deemed spent since that date.

At the age of fifteen, the third applicant acquired two criminal convictions. On 1 February 2012, he was convicted of assault occasioning actual bodily harm and received a supervision youth rehabilitation order with a three-month curfew order. On 29 February 2012, he was convicted of robbery and received a supervision youth rehabilitation order with a three ‑ month curfew order and an electronic tag. The offences later became spent.

The third applicant subsequently sought part-time work which involved working with children. He was required to apply for an ECRC. On 19 April 2018 an ECRC was issued disclosing the two spent convictions. The convictions were subject to mandatory disclosure under the post-29 May 2013 disclosure regime because of the nature of the offences and because there was more than one conviction.

The third applicant requested a revised ECRC on the basis that the disclosed convictions were spent. This request was refused. He commenced judicial review proceedings challenging the inclusion of the convictions on the ECRC. Applying the Supreme Court ’ s judgment in R (P, G & W) ( see below), the High Court dismissed the application for judicial review. On 21 November 2019 the Court of Appeal refused permission to appeal.

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.

On 29 January 2013, the Court of Appeal in R (T and others) v. Secretary of State [2013] EWCA Civ 25 refused one of the claimants in the case permission to appeal in respect of her argument that the 1974 Act breached her right to respect for her private life because it precluded her conviction from ever becoming spent. The court found the legislation to be a proportionate interference with her Article 8 rights.

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.

Spent convictions appear on ECRCs in the same way as unspent convictions.

(a) The pre-29 May 2013 provisions

Under section 113B of the Police Act 1997 a person can make an application for an ECRC, provided that the application is countersigned by a “registered person” (who is the employer, where the certificate is sought in the context of relevant employment). The relevant domestic law prior to 29 May 2013 is set out in detail in the Court ’ s judgment in M.M. v. the United Kingdom , no. 24029/07, §§ 48-57, 13 November 2012. In so far as any specific provisions described there applied only to Northern Ireland, similar provisions applied in England and Wales. In short, an ECRC issued under section 113B contained a record of all previous convictions – spent and unspent – as well as other “soft intelligence” held by the police and deemed relevant by them. The law required that a copy of the certificate be sent to the registered person.

(b) The review of the legislation

In September 2009, the Government appointed an Independent Advisor for Criminality Information Management and asked her to conduct an independent review of the retention and disclosure of criminal record information. In her March 2010 report, A Balanced Approach , she considered the disclosure of criminal record information in the employment context. She recommended that a new filtering mechanism be introduced to prevent certain old and minor convictions from forming part of the mandatory disclosure of criminal record information. She suggested that a filtering mechanism for spent convictions could be based on three rules: the mandatory disclosure of spent convictions relating to more serious offences, a prohibition on disclosing spent convictions relating to certain types of offences (e.g. those which had since been decriminalised) and a power to disclose spent convictions depending on the circumstances. She recommended that an expert panel be set up to advise the Government on the exact nature of the filtering rules.

In October 2010, the Government asked the Independent Advisor to undertake a further review of the criminal records regime in England and Wales. Her first report on this review, A Common Sense Approach: Report on Phase 1 , was published in February 2011 . She recommended that a filtering mechanism be introduced to ensure that old and minor convictions were not included in criminal record certificates. In December 2011, she reported to the Government on the outcome of the discussions held by the Independent Advisory Panel for the Disclosure of Criminal Records, of which she was chair. She noted that the Panel had agreed that old and minor convictions should be filtered out and that certain principles should be applied to filtering arrangements. However, she explained that there had been no consensus in relation to the specific implementation of these proposals. The Government indicated in response that it was continuing to keep the legislation under review.

On 29 January 2013, the Court of Appeal in R (T and others) , cited above, found that the regime for disclosure under the 1997 Act violated the right to respect for private life guaranteed by Article 8 of the Convention. The Government appealed.

On 18 June 2014, the Supreme Court delivered its judgment in R (T and another) v. Secretary of State [2014] UKSC 35. The court held that in order for the regime to be in accordance with the law, there needed to be safeguards that ensured that the national authorities had addressed the issue of the necessity for the interference and that allowed the proportionality of an interference to be adequately examined. Since the relevant provisions of the 1997 Act had lacked any such safeguards, this Court had been correct to conclude in M.M. v. the United Kingdom , no. 24029/07, 13 November 2012, that the scheme was not in accordance with the law.

(c) The new rules

Meanwhile, in light of the Court of Appeal ’ s decision in R (T and others) and the reports and recommendations of the Independent Advisor, in March 2013 the Government brought forward proposals to amend the relevant provisions of the 1997 Act. The proposals were approved by Parliament and the amended rules came into force on 29 May 2013.

Under the amended provisions, a conviction will not be disclosed on an ECRC if the following conditions apply:

(1) eleven years have elapsed since the date of conviction, or five and a half years for convictions imposed on individuals under the age of eighteen (“the currency rule”);

(2) it is the person ’ s only offence (“the multiple conviction rule”);

(3) it did not result in a custodial sentence; and

(4) it was not for a specified offence (mainly offences of violence, sexual offences and other offences relevant to safeguarding children and vulnerable persons).

An adult caution will not be disclosed on an ECRC if six years have elapsed since the date of caution (or two years for cautions imposed on individuals under the age of eighteen) and it is not for one of the specified offences.

The requirement to send a copy of an ECRC to the registered person was subsequently repealed.

On 30 January 2019, the Supreme Court delivered judgment in In re Gallagher and R (P, G & W) v. Secretary of State for the Home Department and others [2019] UKSC 3. The cases concerned the compatibility with Article 8 of the disclosure regime in the 1997 Act, as amended in 2013, in respect of convictions which were spent under the 1974 Act. All four individuals concerned were liable under the legislation to have their previous convictions mandatorily disclosed indefinitely.

Lord Sumption, giving the lead judgment, explained at the outset that the cases raised problems of great difficulty and sensitivity since they turned on the competing interests of rehabilitating ex-offenders and protection of the public. As regards whether the legislation was in accordance with the law, Lord Sumption considered the reference to safeguards in M.M ., cited above, and R (T and another) to be directed at the need for safeguards essential to the rule of law because they protected against the abuse of imprecise rules or unfettered discretionary powers. The current rules governing disclosure of criminal record information under the 1997 Act were, he said, highly prescriptive. The categories of disclosable convictions were exactly defined, and disclosure in those categories was mandatory; within each category there was no discretion governing what was disclosable. There was no difficulty in assessing the proportionality of the measures, since their impact on those affected was wholly foreseeable. The current scheme for disclosure was therefore in accordance with the law for the purposes of Article 8 of the Convention.

As for proportionality, the first question to be addressed was whether the legislation could legitimately require disclosure by reference to pre-defined categories at all, as opposed to providing for a review of the circumstances of individual cases. Lord Sumption noted that this Court had recognised that such an approach could be appropriate, referring in particular to Animal Defenders International v. the United Kingdom [GC], no. 48876/08, §§ 106 ‑ 110, ECHR 2013 (extracts). In such cases, the task of the court was to assess the proportionality of the categorisation, and not the impact on individual cases; these would, however, be illustrative of the impact of the scheme as a whole. In Lord Sumption ’ s view, the disclosure scheme provided “as good an example as one could find of a case where legislation by reference to pre-defined categories is justified”, for four main reasons. First, it was entirely appropriate that the final decision about the relevance of a conviction to an individual ’ s suitability for some occupations should be that of the employer. Second, the objection to disclosure by category was based on the argument that employers could not be trusted to take an objective view of the true relevance of a conviction, but the evidence to support this argument was thin. Third, in this context the value of certainty was particularly high. Fourth, there were important issues of practicality involved, having regard to the high number of applications for criminal record certificates made each year and the resources which would be required to undertake individual assessment in each case. Lord Sumption concluded:

“55. Taking these considerations together, they suggest that although it may be possible to abandon category-based disclosure in favour of a system which allowed for the examination of the facts of particular cases, there would be a cost in terms of protection of children and vulnerable adults, foreseeability of outcome by candidates, consistency of treatment, practicality of application, and delay and expense, without necessarily achieving much more for ex-offenders than the current system ...”

The second question was whether the boundaries in the impugned legislation had been drawn in an appropriate place. In this respect, Lord Sumption noted that the Court had, in Animal Defenders International , cited above, § 108, pointed out that the assessment of the defining factors in a category-based scheme was a matter for the State, and the quality of the examination of the options was likely to be important. He said:

“60. ... First the scheme is the result of substantial research and intensive consultation with a wide range of interested and expert groups and individuals. Secondly, it is apparent that while there is broad agreement on the need for a category-based system of disclosure and the basic principles which should govern it, there is no consensus about where the lines should be drawn. This is not particularly surprising, because there is no solution which could satisfy all of the main desiderata in the design of such a system. No one suggests that the courts can or should design the system themselves in proceedings for judicial review. The function of the courts is an essentially negative one, namely to identify which schemes are incompatible with the Convention. At the same time, a court can only be satisfied that a particular scheme is incompatible with the Convention if it is in a position to say what is wrong with it.”

As regards the scheme under examination, and on the basis that disclosure by categories was justified in principle, Lord Sumption considered that the objections amounted to saying that the balance between the risk of blighting the prospects of ex-offenders and the risk of appointing unsuitable persons to sensitive positions had been drawn in a place that put too much emphasis on the latter and not enough on the former. He continued:

“61. ... Yet a balance of this kind necessarily involves a difficult value judgment. All that a judge can say is that he or she would have drawn it in a different place. But that, with respect, is not the test. We may think that a better scheme could have been devised or that the categories could have been differently drawn, or that too much weight has been given to the risk of unsuitable appointments and not enough to the rehabilitation of offenders. A more ‘ granular ’ categorisation has been applied in Scotland to cases involving risks to vulnerable groups since 2007, and a system of administrative review on the application of an ex-offender has existed in Northern Ireland since 2016. There may be lessons to learn from their experience. But none of this means that the scheme lies outside the margin of judgment properly allowed to the legislator or the Secretary of State on whom the legislator has laid the task of defining the exceptions to the rehabilitation regime. In my judgment it is not possible for us to say, consistently with the proper role of a court of review, that the carefully drawn categories employed in this scheme are disproportionate.”

He identified, however, two exceptions to this conclusion which justified limited declarations of incompatibility as regards the relevant provisions of the 1997 Act. The first exception concerned the multiple conviction rule, that rationale for which was that the criminal record of a serial offender was more likely to be relevant to his suitability for a sensitive occupation because the multiplicity of convictions might indicate a criminal propensity. While he considered this an entirely legitimate objective, the rule as framed was a particularly perverse way of trying to achieve it since it applied irrespective of the nature of the offences, their similarity, the number of occasions involved or the intervals of time separating them. Its capricious impact on individuals could not be regarded as a necessary or proportionate way of disclosing to potential employers criminal records indicating a propensity to offend.

The second exception concerned warnings and reprimands issued to young offenders, which did not require consent and did not involve the determination of a criminal charge. Their purpose was wholly instructive, and their use as an alternative to prosecution was designed to avoid any deleterious effect on a young person ’ s later life. Their disclosure to a potential employer would be directly inconsistent with that purpose.

Lord Kerr, dissenting, considered that in order to be in accordance with the law, the operation of safeguards in the scheme had to permit a proper assessment of the proportionality of the interference with the Article 8 right. If proportionality could not be confidently judged, the measure could not be in accordance with the law. He was of the view that the disclosure scheme did not meet this fundamental requirement. He explained:

“162. ... It is not possible to judge whether the operation of [the] scheme would be proportionate in cases which fall into the categories where disclosure is mandated. In some instances, disclosure might well be proportionate; in others it might be wildly disproportionate. There is simply no way of assessing this if the scheme in England and Wales continues in its present form. Leaving aside the question whether there needs to be individual consideration of particular cases, there is no way of calculating whether the scheme as a whole works in a proportionate way. It is unquestionably true, as the [Government] submit, that the examples which these particular cases provide should not be taken as generally representative of the effect of the scheme. But it is equally true that one has no means of knowing that they are not. What the cases show is that there is at least the potential for widespread disproportionate outcomes in the disclosure of data if the present system continues. For that reason, it cannot be said that there are safeguards to the scheme which allow its proportionality to be adequately examined.”

For Lord Kerr, it was no answer to this “central flaw” to say that it was the inevitable consequence of a bright-line rule, since the Government could not show that, in general, the scheme operated in a proportionate way and that cases “at the margins” should not detract from its overall effect.

In terms of possible safeguards that could be introduced to allow the proportionality of the scheme to be examined, Lord Kerr referred to a provision which linked the relevance of the data to be disclosed to the nature of the employment sought. He considered that a system could be devised whereby a correlation, or lack of one, between the criminal record and the position applied for could be identified which would obviate the need for individual consideration of every case. As to Lord Sumption ’ s comment that the evidence available to support the argument that “employers cannot be trusted to take an objective view of the true relevance of a conviction, is distinctly thin”, Lord Kerr suggested that the evidence of the four cases involved in the appeal “must go some considerable way to support the assertion”; there was certainly no evidence to sustain the notion that the cases were in any sense untypical. In his view, it was wholly unrealistic not to recognise that many employers, faced with a choice of candidates of roughly similar potential, would automatically rule out the one with a criminal record.

The other possible safeguard which, in Lord Kerr ’ s view, might enhance the opportunity for a proper investigation of the proportionality of the interference with Article 8 rights was an individual review mechanism. While it had been suggested that this would create an impossible logistical burden for the authorities, the experience in Northern Ireland did not suggest that this was the case and there was therefore no evidence that it was not a perfectly viable option.

Even if the scheme could be considered in accordance with the law, Lord Kerr did not accept that the bright-line rules in the current legislation were warranted or required. He was of the view that the disclosure of the criminal records in the cases of the four claimants was plainly disproportionate.

COMPLAINTS

The applicants complain about the retention and disclosure of their convictions on ECRCs. The third applicant expressly invokes Article 8 of the Convention.

The second applicant further complains about the fact that his conviction fell outside the scope of the Rehabilitation of Offenders Act 1974 and as a result could not become spent.

QUESTIONS TO THE PARTIES

1. Can the second applicant claim to be a victim of any alleged violation of Article 8 in respect of the pre-29 May 2013 legislative provisions regulating disclosure of criminal record information on ECRCs?

2. Have the first and second applicants complied with the six-month rule set out in Article 35 § 1 as regards their complaints about the specific disclosure of their convictions in ECRCs in May 2012 and January 2013 respectively?

3. Did the first and second applicants exhaust domestic remedies in respect of their complaints, as required by Article 35 § 1 of the Convention? In particular, has the practice of giving effect to the national courts ’ declarations of incompatibility by amendment of legislation become sufficiently certain that the remedy under Section 4 of the Human Rights Act 1998 should be regarded by the Court as an effective remedy which should be exhausted before bringing a complaint of this type before the Court ( see Burden v. the United Kingdom [GC], no. 13378/05, §§ 43-44, ECHR 2008)?

4. In light of the relevant provisions of the Police Act 1997, has there been a violation of the applicants ’ right to respect for their private lives under Article 8 of the Convention ( see in particular M.M. v. the United Kingdom , no. 24029/07, 13 November 2012)?

5. In light of the provisions of the Rehabilitation of Offenders Act 1974 at the time the second applicant lodged his application, has there been a violation of his right to respect for his private life guaranteed by Article 8 of the Convention?

APPENDIX (anonymity has been granted)

No.

Application no.

Case name

Lodged on

Date of Birth

Place of Residence

Nationality

Represented by

1

8296/13

A.H. v. the United Kingdom

15/01/2013

1958London

British

3

56169/13

A.E. v. the United Kingdom

23/08/2013

1975Senghenydd

British

4

8723/20

H.A. v the United Kingdom

05/02/2020

1996Birmingham

British

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