February 1, 2019

Supreme Court rules on Enhanced Disclosure Certificates and parallel self-disclosure obligations

In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland); R (P, G & W) v Secretary of State for the Home Department; R (P) v Secretary of State for the Home Department [2019] UKSC 3

In a complex matter, the Supreme Court has provided guidance on the disclosure obligations of those who had been found guilty of lesser offences and/or received cautions when applying for roles involving vulnerable parties and children.

Regulatory regime

Under the Rehabilitation of Offenders Act 1974 / Rehabilitation of Offenders Order (NI) 1978, a person is not generally required to disclose spent convictions to prospective employers. However, there are certain exceptions to this right of non-disclosure, where it includes the person working with children or vulnerable adults. 

The Disclosure and Barring Service (DBS) deals with Criminal Record Certificates (CRC) and Enhanced Criminal Record Certificates (ECRC), which may include spent convictions and cautions. The DBS may issue an ECRC when the "applicant's suitability for a specific position of trust or sensitivity is considered".

A more selective system of disclosure was introduced in March 2014 in order to limit convictions and cautions, meaning a person with only one conviction may be exempted in certain circumstances. However, if a person has more than one conviction, all of them must be disclosed irrespective of the seriousness or relevance of these offences.

Background

All of the respondents had convictions or cautions that were considered spent:

  • Lorraine Gallagher was convicted of one count of failing to wear a seatbelt (from 1996) and a total of five counts of carrying a child under 14 years old without a seatbelt (three counts in 1996 and two in 1998). She qualified as a Social Carer and was admitted to the Register of Social Carers in Northern Ireland in 2013. Mrs Gallagher was the subject of an application for an ECRC.
  • P (aged 28 in 1999) received a caution for the theft of a sandwich, and convictions for the theft of a 99p book and failing to surrender to bail. She received conditional discharges. P qualified as a Teaching Assistant but was unable to find employment.
  • W (aged 16 in 1982) was convicted of ABH after being involved in a fight with a number of boys in 1982. He received a conditional discharge. In 2013 he began a course to obtain a certificate in teaching English to adults.
  • G (aged 13 in 2006) received two police reprimands for sexually assaulting two younger boys. Police records noted that the sexual activity was consensual and "seems to have been in the form of 'dares' and is believed to have been a case of sexual curiosity and experimentation on the part of all three boys." In 2011, G was required to apply for an ECRC when working as a Library Assistant in a local college.

All of the respondents had offers of employment withdrawn, were unable to find employment, or believed the disclosure obligations prejudiced their attempts to find work in their chosen field. The respondents challenged the disclosure schemes as being incompatible with Article 8 (right to private and family life) of the ECHR.

The High Court was asked to consider if Article 8 was engaged, if any exemption to this qualified right of privacy was in accordance with the law (the legality test) and, if it was, whether the measures were proportionate to achieve its aim (the proportionality test). The High Court found in favour of the respondents except W. The Court of Appeal upheld the finding for the respondents, yet overturned the High Court and also found in favour of W. The Secretary of State for the Home Department appealed.

Appeal

The Supreme Court dismissed the appeals against Mrs Gallagher, P and G. The Supreme Court allowed the appeal of the Secretary of State in the case of W.

Lord Sumption gave the main judgment, with Lord Kerr dissenting. Delivering the judgment, Lord Sumption found that the legality test was satisfied because the rules governing the disclosure of criminal records are "highly prescriptive, mandatory and leave no discretion".

However, the appeals against Mrs Gallagher, P and G failed on the proportionality test, and thus the legislation was incompatible with Article 8. The Court found that legislation requiring disclosure of pre-defined categories may be justified but the categories were disproportionate in two instances:

  1. Where there are multiple convictions disclosed, no consideration is given to the nature, similarity, number or time of intervals of offences. The rationale of the rule was that a "multiplicity of convictions may indicate a criminal propensity". However, Lord Sumption found that this rule was "incapable of indicating a propensity", albeit it may "coincidentally do so in some cases".
  2. In the case of young offenders, warnings and reprimands are designed to be instructive and to avoid damaging effects in later life. Lord Sumption commented that "Its disclosure to a potential employer would be directly inconsistent with that purpose."

Therefore, in the case of Ms Gallagher and P there should be a declaration of incompatibility as the disclosures were based on the multiple convictions rule. In the case of G there should be a declaration as the disclosure related to a reprimand against a young offender.

In the case of W it remained appropriate to include ABH within the category of offences requiring disclosure and the appeal was allowed. ABH is a violent offence, sometimes attracting an extended prison sentence. Despite 31 years passing since the conviction, a temporal limit on violent or sexual offences "would have risked the non-disclosure of the worst cases in the category".

Lord Sumption stated that the "question is whether the choice of category is proportionate, not whether it impacted disproportionately on particular cases". 

Lord Kerr, dissenting, argued that the scheme in England and Wales failed the legality test (as well as the proportionality test) since the cases show that there is at least the potential for widespread disproportionate outcomes in disclosure. He stated he would have dismissed all of the appeals, including W's.

What can we learn?

  • The statutory scheme for the disclosure of convictions, cautions and reprimands is complex and must be balanced against an individual's right to a private life. To this end, the Court found that the current schemes of disclosure are in accordance with the law, notwithstanding the two disproportionate categories.
  • When referring to W, Lord Sumption's judgment acknowledged that disclosure by categories will "inevitably produce a disproportionate impact in some cases." Nonetheless, attempting to avoid such an impact would require "complex additional problems of definition, thereby making the scheme more problematic than it already is". Lady Hale highlighted that "devising a coding mechanism for the type of position applied and then a scheme for correlating the relevance of particular offending… would be extremely difficult, if not impossible."
  • On the basis that the current process was sufficient when balancing all relevant interests, Lord Sumption stated that in cases such as W's, there must be a trust in employers to "exercise [their] judgment responsibly".