Lawyers must fix the problems with gagging orders before it is too late
On 30 January 2019, the Supreme Court handed down judgment in the eagerly awaited matter of R (on the application of P, G and W) (Respondents) v Secretary of State for the Home Department and another (Appellants)  UKSC 3 relating to the disclosure of criminal records.
We expect this decision will bring about legislative amendment, but in the interim we consider how this decision impacts on the employment/regulatory sector?
The case dealt with an appeal brought by the Home Office after the Court of Appeal ( NICA 42 and  EWCA Civ 321) declared that the current disclosure regime, in particular relating to enhanced Criminal Record Bureau checks (ECRB), was incompatible with the Article 8 ECHR right to a private and family life. Each of the individuals involved had at least one conviction for matters which were at the lower end of the scale of seriousness. It was their argument that the disclosure of these convictions disproportionately affected their Article 8 rights.
Article 8 of the ECHR states:
In short, Article 8 is a qualified right, and as such any interference by the state must be necessary and proportionate.
The legislation governing the disclosure of convictions is largely set out in:
The Supreme Court, whilst upholding the judgment from the Court of Appeal in some respects, departed in that it significantly narrowed the decision. Lord Sumption at paragraphs 42 and 45 made plain that … “The rules governing the disclosure of criminal records, both by ex-offenders themselves under the Rehabilitation of Offenders Act 1974 and by the Disclosure and Barring Service and Access NI under the Police Act 1997 , are highly prescriptive. The categories of disclosable convictions and cautions are exactly defined, and disclosure in these categories is mandatory. Within any category, there is no discretion governing what is disclosable. There is no difficulty at all in assessing the proportionality of these measures because, subject to one reservation (see the following paragraph), their impact on those affected is wholly foreseeable.”
He concluded that “…the current scheme of disclosure under the Rehabilitation of Offenders Act 1974 (as amended) and the Police Act 1997 (as amended), and the corresponding legislation in Northern Ireland, are in accordance with the law for the purposes of article 8 of the Convention.”
In relation to proportionality the Supreme Court found that “…with two exceptions, the carefully drawn categories in the legislation are not disproportionate [61-62]. The first exception is the multiple convictions rule, which does not achieve its purpose of indicating propensity as it applies irrespective of the nature, similarity, number or time intervals of offences . The second exception concerns warnings and reprimands for younger offenders, the purpose of which is instructive and specifically designed to avoid damaging effects later in life through disclosure .”
Throughout the judgment the Supreme Court was very clear that they had to be mindful of the competing interests of allowing rehabilitated persons the chance to start afresh, whilst also protecting the public and in particular safeguarding children and vulnerable adults. Particular reference was made to the 2004 Bichard Inquiry which was held after two young girls were murdered by their school caretaker. The following was stated about the inquiry:
…child protection procedures and vetting practices [were] a stark reminder of the importance of ensuring that the rehabilitation of offenders does not undermine proper standards of public protection when those with criminal records apply for jobs involving contact with children.” [para 2]
The overall force behind this decision is angled towards minor convictions not disproportionally affecting the lives of otherwise appropriate candidates. The rule relating to serious offences (such as violence and sexual offences) continues to be caught by the current regime.
Lady Hale stated in the earlier case of R (Tigere) v Secretary of State for Business, Innovation and Skills  1 WLR 3820, para 36, “…sometimes lines have to be drawn, even though there may be hard cases which sit just on the wrong side of it.”
Whilst W’s case was caught by the serious offences rule, the Supreme Court stated that P and G’s cases were clearly not relevant to the safeguarding of children or vulnerable adults.
This decision does not in any way prevent employers from knowing about offences which involve any of the behaviour outlined in The Rehabilitation Of Offenders Act 1974 (Exemptions) Order 1975, but, the fundamental change for regulators and employers at this stage is yet to be legislated on. The government must now examine and amend the law regarding disclosures in cases of multiple convictions, youth cautions, reprimands or warnings. In the interim period, the regulator may wish to issue guidance as to any on-going disclosures involving these two specific areas.
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