Forgiven and forgotten?: Disclosure of criminal records

The question of whether to stigmatise offenders for life or to allow their crimes to be forgiven by being forgotten has again been raised in two recent decisions of the Administrative Court.

In 2013, a new disclosure system introduced the protected caution or conviction. Whereas under the old system all spent records would be mandatorily disclosed on standard and enhanced criminal records certificates effectively for life, protected records are automatically filtered after a fixed period to avoid their automatic disclosure. Records involving a listed offence cannot, however, be protected; nor can any conviction that resulted in a prison sentence or was not one’s only conviction.

The exclusion of individuals with multiple convictions from the protected scheme was challenged in P and A v Secretary of State for Justice [2016] EWHC 89 (Admin). Forty-seven-year-old P was, during a three-and-a-half-year period of untreated schizophrenia in 1999, convicted of stealing a book and subsequently failing to attend her court hearing; 51-year-old A had, between the ages of 17 and 18, committed two thefts and a driving offence. As they each had more than a single conviction, both would inevitably have their stale records disclosed when applying for teaching positions or Financial Conduct Authority (FCA) approved roles.

P and A argued that revealing their irrelevant records simply because they had more than one historic conviction for a minor offence was an unlawful interference with their privacy rights.

Lord Justice McCombe agreed. He could ‘see no reason for thinking that [P’s and A’s] convictions… bear, for [P’s and A’s] entire lifetimes, a rational relationship with the objects sought to be achieved by the disclosure [rules], simply because… there is more than one conviction’. The requirement that their records should be disclosed represented an interference with P’s and A’s privacy that was ‘not in accordance with the law’ because its arbitrariness lacked the quality of law. P’s and A’s own legal duty to disclose their records for teaching and FCA jobs was, although ‘in accordance with the law’ because it did not directly involve state action, wholly unnecessary in a democratic society and was also in violation of article 8.

Four weeks after P and A, the Administrative Court dealt with ‘the vexed issue’ of the unprotected status of juvenile records for listed offences in G v Chief Constable of Surrey Police [2016] EWHC 295 (Admin). G argued that his reprimands for sexual activity with boys aged between eight and ten when he himself was but a 12-year-old child should not be automatically disclosable.

Applying the reasoning in P and A, Mr Justice Blake found that to ‘bear a reprimand indefinitely as a mark of Cain with no ability to demonstrate its disclosure is irrelevant and unnecessary ‘led inexorably to the conclusion that, by excluding certain offences from protection, the disclosure system, again, lacked the ‘quality of law’.

The government has appealed P and A and will almost certainly also take G to the Court of Appeal, where the appeal in W v Secretary of State for Justice [2015] EWHC 1952 (Admin) will shortly be heard. As a 16-year-old schoolboy in 1982, W received a conditional discharge for assault occasioning actual bodily harm (ABH). Despite 31 years’ uninterrupted good conduct, W remained haunted by his juvenile misdemeanour without any prospect of his record being filtered. At odds with the court’s later finding in G, Mr Justice Simon held in W that parliament had been entitled to draw a ‘bright line’ between ABH and offences such as common assault when listing offences that were beyond the pale of protection, and deemed any suggestion that the state ought to assess the proportionality of a conviction’s disclosure to be unduly burdensome.

While wrestling with three appeals on the disclosure of criminal records, the Court of Appeal will also imminently decide on the lawfulness of the mere retention of criminal records in Krol v Commissioner of Police of the Metropolis [2014] EWHC 4552 (Admin). In Krol, Mr Justice Davis accepted that ‘the administering of a caution and retention of a caution constitute an interference with article 8 rights’, although he ultimately determined that the continued storage of the claimant’s caution was necessary and proportionate.

Davis J’s remarks, however, run counter to the leading authority of Chief Constable of Humberside Police v Information Commissioner [2009] EWCA Civ 1079, in which Lord Justice Waller disputed that article 8 had any bearing on whether convictions or cautions ought to be retained. That article 8 is engaged by the storage of caution records appears clear from Lord Wilson’s obiter remarks in T v Secretary of State for the Home Department [2014] UKSC 35, along with recent decisions on police records generally (see, for instance, Catt v Commissioner of Police of the Metropolis [2015] UKSC 9).

The Court of Appeal will yet again busy itself, therefore, in resolving what has now been a 12-year saga, commencing with 2004’s Bichard report, to balance public safety against fairness to ex-offenders. SJ

Richard Easton is a solicitor at Sonn Macmillan Walker