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Do Criminal Record Disclosures Breach Our Human Rights?

JURIST Guest Columnist Serge Diaz, University of Edinburgh School of Law Class of 2015, discusses the effects of a recent ruling by the UK Court of Appeal on UK criminal record disclosures laws...

On January 29, 2013, the UK Court of Appeal handed down a disappointing judgment for the UK government in the case of R v. Chief Constable of Greater Manchester, declaring that the current statutory regime governing criminal record disclosures in the context of employment is incompatible with Article 8 of the European Convention on Human Rights (ECHR) [PDF]. The court criticized the system for being too harsh and disproportionate on job seekers, whose entire criminal record is laid before the employer when the latter elects to obtain a criminal record certificate on the applicant. Albeit the court ruling does not automatically invalidate the concerned legislation — namely the Police Act 1997 ("the 1997 Act") and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975/1023 ("the ROA Order") — and its legal implications are limited to monetary damages payable to the triumphant plaintiffs by the government, its political consequences are far-reaching given the current political climate in Europe, where courts often countermand democratically elected legislatures under the ethos of vindicating human rights of minorities. The UK government has to act fast, and it has already chosen the legal avenue of appealing the decision to the UK Supreme Court. So while the final say in the case belongs to the justices of the UK Supreme Court, curious academics cannot abstain from making multifarious forecasts as to what party will eventually come out victorious.

The ECHR became transposed into the domestic law of the UK in 1998 when the UK Parliament passed the Human Rights Act 1998 (HRA). Section 1(1) of the HRA enumerates which articles of the ECHR are incorporated under the heading of "Convention rights" while Section 1(2) provides that those rights "are to have effect." This is not to say that before 1998, the UK was a despotic regime devoid of such notion as human rights. Many of those rights were already entrenched at common law, such as the right not to have your house searched without a warrant. However, the ECHR did add clarity and certainty to the UK legal system by codifying human rights.

Article 8 of the ECHR, which is included in the definition of "Convention rights" under Section 1(1)(a) of the HRA, guarantees our right to "private and family life." The issue in Chief Constable of Greater Manchester was whether the 1997 Act and the ROA Order contained provisions contravening Article 8. Section 5(2) of the Rehabilitation of Offenders Act 1974 (ROA) provides that after the passage of relevant time (from three to ten years, depending on the circumstances), certain convictions become spent and no longer have to be disclosed under Section 4(2) of the act. Paragraph 3(3) of Schedule 2 to the act extends the same provision to cautions given by the police, which are spent either at the time they are given or at the end of the relevant time if the caution contains special conditions with which the offender must comply. However, Article 3 of the ROA Order excludes the protection given by the ROA if a person seeks employment in a field listed in Part II of Schedule 1 to the order, which includes "any work ... relating to vulnerable adults" and "any work ... relating to children." For the purposes of these exempted questions, a criminal record certificate may be obtained by the employer under Section 113A of the 1997 Act, or under Section 113B of the 1997 Act if it is an enhanced criminal record certificate, which will disclose all of the applicant's convictions or cautions.

The case featured three plaintiffs, who applied to the court under Section 4(2) of the HRA for a declaration of incompatibility. The first plaintiff (T) was warned twice by the police at the age of 11 for stealing bicycles. The second plaintiff (JB) was cautioned by the police as an adult because she forgot to pay for a packet of fake nails before leaving a store. The third plaintiff (AW) was convicted of manslaughter and robbery at the age of 16. T sought employment in the childcare sector. JB wanted to work with vulnerable adults. AW applied to join the army. Their poor criminal records rendered their career choices nonviable.

The court recognized that criminal record checks could interfere with Article 8 of the ECHR since they disclosed private information that the targeted individual may have wanted to keep to himself to third parties and affected the individual's employment prospects, thus restricting his ability to develop relationships with others. In ruling in favor of the first and second plaintiffs, the court relied on the report of the Independent Advisor for Criminality Information Management, which suggested that employers often misinterpret information printed on criminal record certificates and prefer to err on the safe side by rejecting such applications. It was also suggested that there was a blanket requirement of disclosure, and the courts in the UK have demonstrated their general contempt for rules of a blanket nature, wherein the government confines itself to one extremely inflexible policy. It is also evident that the court sympathized with the first plaintiff, characterizing him as a "man of good character," qualifying his offense as "trivial" and emphasizing that he was only 11 years of age when he was cautioned.

However, there were some considerations that the court failed to take into account when handing down the judgment. First and foremost is the fact that some of the exempt occupations include positions in the police, military, air force, etc., which inevitably have a bearing on national security. The courts normally prefer to abstain from regulating those matters for obvious reasons. Are we sure we want to run the risk of employing ex-offenders in these sectors, given that according to Criminology approximately 70 percent of offenders aged 16 to 18 subsequently reoffend? Secondly, the suggestion that many employers misinterpret criminal record certificate is not entirely accurate. The Disclosure and Barring Service Code of Practice states that those employers who seek a criminal record disclosure "must have a written policy on the suitability of ex-offenders that is available upon request to potential applicants." Thus, the absence of a clean rap sheet does not automatically lead to the applicant being rejected. Finally, how about the counterbalancing Article 8 right of children and parents in this country, who are surely entitled to make choices pertaining to education, in case they are not entirely in favor of ex-convicts teaching at public schools?

Perhaps, many of us are under the impression that cautions, warnings or reprimands are given by the police in cases where the offense is trivial and/or solid evidence is lacking. Such impressions are a delusion. Conditional cautions are administered under Section 22 of the Criminal Justice Act 2003, with additional criteria laid out in Section 23. Thus, there must be evidence that the person has committed the offense, the person must admit to having committed the offense and the public prosecutor must be satisfied that there is sufficient evidence to charge the person with the offense. If conditions attached to the caution are not complied with by the offender, he must be arrested and prosecuted for the same offense under Sections 24(1), 24A(1) and 24A(2). A caution will not be recorded on the Police National Computer unless it is given for an offense punishable by imprisonment. For offenders under the age of 18, reprimands and warnings are issued instead of cautions under Section 65 of the Crime and Disorder Act 1998, which carry similar legal effects to adult cautions. Cautions, warnings and reprimands must be viewed as a form of mercy from the police (or in some cases the result of lack of funds to institute criminal proceedings), rather than the innocence of suspects. Statistical evidence suggests that "25 [percent] of offenders who abuse children were let off with a caution," which is already a "betrayal of our justice system," according to MP Priti Patel. It is unclear why the court considered the myriad of these filtering mechanisms to be insufficient.

The legal basis for the court decision was the ratio in the case of M.M. v. United Kingdom. M.M. concerned a woman cautioned for abducting her grandson in 2000. She disclosed her caution to the prospective employer in 2006 and had her offer of employment in the childcare sector revoked. The case climbed all the way up to the European Court of Human Rights (ECtHR), which held that the applicant's Article 8 rights had been breached. The court said that "indiscriminate and open-ended collection of criminal record data is unlikely to comply with the requirements of Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable." The court in Chief Constable of Greater Manchester found such guidance sound.

However, M.M. could, in theory, be distinguished on its facts. The case took place in Northern Ireland, which has a different statutory framework for disclosing convictions and cautions. ROA is not in force in Northern Ireland. Instead, there is an analogous piece of legislation, Rehabilitation of Offenders (Northern Ireland) Order 1978, which fails to provide a time frame of expunging cautions from criminal records. In other words, cautions are weeded out at the discretion of the police. In light of the murder of two school girls in Soham, England, the police in Northern Ireland adopted a policy whereby all convictions and cautions wherein the injured party is a child were kept on the record of the offender for life. Contrast this approach with the laws of England and Scotland, where, unless you apply for an employment of an exempted nature, the ROA will kick in, and you will not be obliged to answer any questions about your spent convictions or cautions. No such framework exists in Northern Ireland with respect to cautions, and, of course, the ECtHR would be highly critical of the situation. Its reasoning in M.M. obviously pertained to the specific legislative regime in Northern Ireland. If it had not, then why make a contrasting reference to English and Scottish statutes in the first place? It seems that the UK Court of Appeal took the judgment in M.M. out of its legal context and erroneously extrapolated it to Chief Constable of Greater Manchester.

Having said that, it is true that the case of T specifically deserves sympathy. The legislation punished him too harshly for his misconduct as a child. A sound option was suggested by the secretary of state to read down the legislation, in accordance with Section 3(1) of the HRA, which requires the courts, "so far as it is possible to do so," to read and give effect to legislation in a way which is compatible with the convention rights. Thus, the provisions of the ROA Order would apply, save for cases where this would breach the convention rights. This proposition did not appeal to the court in Chief Constable of Greater Manchester, since it constituted a major change to the legislation and placed too much burden on the employers in respect of identifying the exact scope of these convention rights. But why not place such burden on the police? Aren't they in the best position to decide what should be included on the criminal record certificate with a view to safeguarding the public and what should be expunged so as not to breach the applicant's human rights? They are a law enforcement agency after all.

Judges have already demonstrated their preparedness to alter the legislation so as to render it compatible with the ECHR, even if the alterations are somewhat drastic. In R v. A, the plaintiff sought a declaration of incompatibility concerning Section 41 of the Youth Justice and Criminal Evidence Act 1999 since it did not allow to adduce any evidence about complainant's sexual behavior in cases of sexual offenses, except in very limited circumstances. The House of Lords read down the act insofar as to render it applicable only where the accused's right to a fair trial was not breached. Thus, the courts have demonstrated their willingness to travel elaborate distances to interpret legislation in line with the convention rights, recognizing that declaration of incompatibility should be viewed as a last resort. It is unclear why the court in Chief Constable of Greater Manchester did not employ this convenient balancing tool, but it could be because it considered that the current statutory regime should be thoroughly revised. The consequences of such revision from the ground up can be dangerous.

There is a good legal and empirical case to retain the current legislative framework surrounding criminal record checks. The filtering mechanism has a degree of sophistication, the legal authorities on its incompatibility are at best inconclusive and, in deciding the case of Chief Constable of Great Manchester, the court had the common law authority to adopt a more permissive interpretation of current legislation. It is unclear why the UK Court of Appeal urged Parliament to make drastic amendments to the concerned statues. The UK government could succeed in their appeal to the UK Supreme Court if it raises the relevant concerns, or at least we might be given more persuasive reasons as to why the ROA Order and the 1997 Act are incompatible with the ECHR.

Serge Diaz is currently in his second year of legal studies at the University of Edinburgh. His primary areas of interest are public administrative law, criminal law, and the law of evidence. Recently, Diaz has joined the LawPALS leadership team at the University of Edinburgh, a scheme designed to assist first-year law students in their transition from high school to law school. He believes that the benefits of legal education do not stop at increasing one's chances of obtaining a well-paid employment, but have a critical bearing on a person's reasoning skills, transform the most rigidly held convictions into substantially more malleable, evidence-based views and enhance his inner sense of justice.

Suggested citation: Serge Diaz, Do Criminal Record Disclosures Breach Our Human Rights? , JURIST - Dateline, Mar. 28, 2013, http://jurist.org/dateline/2012/10/serge-diaz-human-rights.

This article was prepared for publication by Fangxing Li, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to him at studentcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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