A lot has changed since the 70s. But our attitude towards those who have committed criminal offences, even those who have remained law-abiding for years thereafter, seems stuck in time. The principle of rehabilitation appears politically unattractive, conjuring up, as it does notions of soft-touch holiday camps for young offenders. The reality today is that those with previous convictions (whether they be spent or unspent to use the language of the statute) find it difficult to secure employment and so move on with their lives.
In its efforts to protect the young and the vulnerable, has the state caused the pendulum to swing too far away from an individual’s privacy in favour of blanket disclosure of warnings or cautions to certain categories of prospective employers?
It was essentially this issue that fell to be decided by the Court of Appeal in the recent case of T, R (on the application of) v Chief Constable of Greater Manchester & Ors  EWCA Civ 25.
The case dealt with three conjoined appeals. The first appellant T, was 11 when he received two warnings in connection with stolen bicycles. These were disclosed to his university where he had enrolled in a sports studies course which involved teaching and contact with children. The second appellant JB was in her 40s in 2001 when she accepted a caution after leaving a shop without having paid for a packet of false nails. As a result of this disclosure, she was refused a job in 2010 as a care worker. The final appeal concerned AW who, in 2003, when she was 16, pleaded guilty to manslaughter and robbery after helping her boyfriend carry out a car-jacking in which he stabbed the driver. She received a total of five years’ detention. She now wanted to join the army.
Was art 8 engaged?
The Court of Appeal first had to consider whether art 8 of the European Convention on Human Rights (ECHR) fell to be considered at all. The Master of the Rolls, Lord Dyson, had no hesitation in finding that, given the potential of the statutory regime governing the disclosure of convictions, cautions and warnings to limit future employment prospects, art 8 was engaged. Lord Dyson said [at para 31]:
“In one sense, criminal conviction information is public by virtue of the simple fact that convictions are made and sentences are imposed in public. But as the conviction recedes into the past, it becomes part of the individual’s private life. By contrast, a caution takes place in private, so that the administering of a caution is part of an individual’s private life from the outset. Secondly, the disclosure of historic information about convictions or cautions can lead to a person’s exclusion from employment, and can therefore adversely affect his or her ability to develop relations with others: this too involves an interference with the right to respect for private life. Excluding a person from employment in his chosen field is liable to affect his ability to develop relationships with others, and the problems that this creates as regards the possibility of earning a living can have serious repercussions on the enjoyment of his private life: see Sidabras v Lithuania (2004) 42 EHRR 104, para 48.”
Was the interference proportionate?
The court then considered whether the interference complained of fell within art 8 (2) and so was justified and proportionate. It was argued on behalf of the Secretary of State for the Home Department (SSHD) that the disclosure of all convictions or cautions was in pursuit of the legitimate aim of protecting the young and the vulnerable. It was argued that it was legitimate for Parliament to draw a clear distinction between, on the one hand information that an individual has committed an offence, and on the other, information falling short of that. It was argued that this “bright line” makes good sense and has the merit of being simple and easy to understand. In accepting the aims identified as legitimate but rejecting the principle that disclosure of all cautions was necessary in pursuit of these aims the Master of the Rolls said [at para 39]:
“...The disclosure regime was introduced in order to protect children and vulnerable adults. That objective is not furthered by the indiscriminate disclosure of all convictions and cautions to a potential employer, regardless of the circumstances. A blanket requirement of disclosure is inimical to the ROA and the important rehabilitative aims of that legislation. Disclosure that is irrelevant (or at best of marginal relevance) is counter to the interests of re-integrating ex-offenders into society so that they can lead positive and law-abiding lives.”
The court was clear that consideration must be given to the seriousness of the conviction, the age of the offender at the time of its commission, the sentence imposed, the age of the offence, whether the individual concerned had committed any further offences and whether the potential employment necessitated disclosure of the conviction/caution at issue. It was simply not good enough for the state to adopt the position that disclosure of all convictions/cautions was necessary in pursuit of a legitimate aim even when the potential employment concerned working with the young or the vulnerable.
Impact upon employment law
The facts of JB’s case highlight some concerns for potential applicants for employment and to employment law advisors. When and how much of one’s previous dealings with the police should a prospective employee disclose on an application form or during an interview? Is it unlawful to withhold information about an old caution received while still a youth?
These kinds of questions are not only thrown up before the start of the employment relationship as in the facts of JB. Anecdotally one hears of employers carrying out “routine” Criminal Records Bureau (CRB) checks following a change in policy and such checks leading to summary dismissals upon the disclosure of a conviction or caution. Could such a dismissal be unfair under s 98 of the Employment Rights Act 1996?
The answer would depend on the individual circumstances of the case. But if the conviction was old (ie, significantly pre-dating the employment or post-dating the commencement of an employment relationship that has survived for some years without incident), minor and arguably irrelevant to the role performed, then potentially the answer could be “yes”.
Deciding where the line should fall in practice
The appeals of T and JB were successful. However AW’s appeal was dismissed, the court ruling that Parliament was entitled to take the view that some offences are so serious that they should never be regarded as spent (this is perhaps not surprising given both the nature of the offence and the sentence imposed).
The court expressed some sympathy for the state in the difficulties it may encounter in devising a filtering mechanism to assist in deciding what cautions to disclose and in what circumstances. There will be cases that factually are not as clear cut as the facts in the appeals of JB and AW. There will be many hard cases that fall somewhere in between. That is where potential problems lie. The court nonetheless was of the view that a fair scheme can be devised. At para 43, the court cites with approval criteria that could be used in the filtering process as recommended by the Criminal Records Review established by the SSHD in October 2010.
However, it is difficult to see how a scheme could do justice to the particular facts thrown up by the hard cases without looking at such cases individually. It may be that most cases could be dealt with fairly by the filtering scheme and so it will only be a minority of cases demanding individual scrutiny, and so not an inordinate drain upon resources.
There is another worrying, perhaps unintended consequence of a blanket rule requiring the disclosure of convictions, cautions or warnings to specific categories of potential employers. Such a rule may well operate disproportionately against Black Minority Ethnic (BME) communities.
Article 14 provides that the rights and freedoms guaranteed under the ECHR shall be secured without discrimination on any ground such as, for example, colour. This is not, of course, a free-standing right but could be deployed in conjunction with art 8.
Studies show that black people are seven times as likely, and Asians twice as likely as white people to be stopped and searched by the police. In 2009 and 2010, black people were 3.3 times more likely to be arrested than white people. Those from a mixed ethnic group were 2.3 times more likely to be arrested than white people (see www.irr.org.uk/research/statistics/criminal-justice/). It is certainly correct that a large proportion of such arrests end in the detained person being released with no further action, however as black and Asian people are more likely to come into contact with the police, it maybe that they are more likely to receive warnings, cautions and convictions as compared to the rest of the population.
Figures published in 2011 show that BME defendants are more likely to be convicted once they appear before the courts, more likely to receive immediate sentences of custody and those sentences are usually longer than those received by white defendants (see Statistics on Race and the Criminal Justice System 2010, a Ministry of Justice publication under s 95 of the Criminal Justice Act 1991). This, of course, impacts upon the effect of the ROA on this group; as the longer the sentence, the longer it will take for the conviction to become spent, if at all. There is, therefore, evidence that BME ex-offenders are the ones who would be hardest hit by a blanket rule requiring criminal information about them to be disclosed to potential employers.
Perhaps this apparent inequality in the treatment of minorities at the hands of our criminal justice system is yet another reason to welcome this decision of the Court of Appeal; a decision that reaffirms the principles behind the ROA set out all those years ago and one that affords individuals the chance to put their past firmly behind them.
Shereener Browne is a tenant at Garden Court Chambers. A version of this article appeared in the Discrimination Law Association’s journal Briefings, vol 48 March 2013