High Court rules childhood criminal records disclosure scheme unlawful (again)

R (QSA and others) v Secretary of State for the Home Department and Secretary of State for Justice [2018] EWHC 407 (Admin)

The claimants, victims of child sexual exploitation (CSE) with childhood convictions relating to prostitution, successfully challenged the legality of the criminal record disclosure schemes. The High Court re-affirmed that the current criminal record disclosure schemes are arbitrary and indiscriminate and there is an inadequate assessment of present risk in a particular employment and therefore found that they are unlawful.

Details

The claimants were three women who had been groomed into prostitution as children and young adults. They each had multiple convictions for loitering or soliciting for the purposes of prostitution under the Street Offences Act 1959, s.1. They had largely been sentenced to financial penalties and the convictions were from many years ago and therefore ‘spent’ within the definition created by The Rehabilitation of Offenders Act 1974. The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 lists areas of work to which The Rehabilitation of Offenders Act 1974 does not apply, for example working with children or vulnerable adults. When applying for these areas of work spent convictions have to be declared, as the claimants discovered.  The Police Act 1997 Pt V introduced a scheme for disclosure of criminal records for assessing the suitability of applicants for employment with children or vulnerable adults, or employment involving a high degree of trust. Under s.113A and s.113B, applicants had to apply to the DBS for a criminal record or enhanced criminal record certificate, which provided details of every “relevant matter”.

In R (T) v Chief Constable of Greater Manchester Police [2015] AC 49 it was held that the existing criminal record disclosure scheme, which required all cautions or convictions including those received in childhood to be disclosed, breached the claimant’s Article 8 rights and was unlawful.

Amendments in 2013 to the Rehabilitation of Offenders Act 1974 (exceptions) Order 1975 and the Police Act 1997 meant that cautions and a first conviction for certain offences (including the relevant prostitution offences) could have the benefit of the 1974 Act exemptions and would not have to be disclosed once spent.

In R (on the application of P and others) v Secretary of State for the Home Department [2017] EWCA Civ 321 the Court of Appeal held the current scheme, under which multiple spent convictions will always have to be disclosed for relevant job applications, to be not in accordance with the law. The appeal in the Supreme Court will be heard in 2018.

In the current case the Court stated:

‘We accept that we are bound by P to conclude that the statutory scheme under sections 113A and 113B of PA 1997 is not in accordance with the law, because the multiple conviction rule operates in the indiscriminate, and hence arbitrary, manner summarised at paragraph 44 of P.’ (paragraph 55)

‘We would have reached the same conclusion even if not bound by P, in particular because the facts of this case vividly illustrate the fact that the multiple conviction rule operates in circumstances in which any link between the past offending, and the assessment of present risk in a particular employment, is either non-existent or at best extremely tenuous.’ (paragraph 56)

‘[T]he application of the multiple conviction rule to the circumstances of this case results in an interference with the claimants’ Article 8 rights which is neither in accordance with the law nor necessary in a democratic society. To that extent, the schemes are unlawful.’ (paragraph 63)

Commentary

This case has wide ramifications for all people who have childhood convictions and raises further questions about the criminal records of people who have convictions arising from child trafficking, child criminal exploration and modern slavery (including county lines).