Government plans new changes to criminal records disclosure regime
Youth cautions as well as old, minor convictions will no longer be disclosed in criminal record checks following two new statutory instruments that have been laid before parliament in draft form. Once they have been passed by parliament and voted on, no reprimand, warning or youth caution will be disclosed on standard or enhanced criminal record checks. Those who have childhood convictions for minor offences will no longer have to disclose them after 5.5 years. Minor offences received by adults will also no longer be disclosed after 11 years. These changes are made following the case of R (P,G and W) v Secretary of State for the Home Department [2019] UKSC 3.
Read our blog post by Jen Twite,
Head of Strategic Litigation at Just for Kids Law:
Last Thursday when the government announced that they had laid two draft statutory instruments to amend the rules governing the disclosure of old cautions and convictions, it felt like we were finally getting to the end of a five-year battle.
It has been a five-year battle for us, for many others so much longer. Our client was struggling with this for years before we got involved, and other campaign groups, such as Unlock have been fighting this issue for far longer.
Our involvement began in 2015 when we got an enquiry from a parent, who could not believe that her son, who was issued 2 reprimands for something that had happened when he was 12, was still having to tell employers about it when he applied for jobs in his twenties.
We work with a lot of children in trouble with the law. But there is little point in pushing for a functioning youth justice system when even the lowest disposals still blight the future of those given them.
Our client, like so many others, would have his reprimands disclosed on every single criminal record check he ever carried out. There was no time at which his actions as a 12-year old would be considered no longer relevant. There was no court or tribunal he could go to who could decide that these matters should not be disclosed. So we challenged the entire disclosure system.
We weren’t the only ones to do so. Liberty’s client, P, took a similar case. That judgment came out a few weeks before we went to court. They had argued that the disclosure regime was unlawful; it was a breach of Article 8. Their argument was about the “multiple conviction rule” – the rule that says if you have more than one conviction all your convictions will be disclosed, no matter how minor, no matter how long ago. The Divisional Court in their case found this distinction to be arbitrary. P had a conviction for shoplifting and another for failing to attend court for the same offence. So technically two convictions, but relating to the same incident. The arbitrariness couldn’t be highlighted better though than by the Northern Irish case of Gallagher, who joined us in the Supreme Court. One woman driving three children in the back of the car, who weren’t wearing seatbelts. Three children and therefore three convictions. For the rest of her life these convictions would be disclosed in criminal record checks.
We made the same argument on behalf of our client. If the multiple conviction rule was a breach of Article 8, surely so was disclosing youth reprimands or cautions. The High Court agreed, and then, so did the Court of Appeal.
Of course the government could have conceded these cases. We relied on the case of R(T) v SSHD, [2014] UKSC 35 in which the Supreme Court had already found that the disclosure regime in the UK was unlawful back in 2014. Following the case of T some changes were made, but they did not deal with the fundamental problems of the disclosure regime. The regime was still arbitrary, with many matters disclosed that were clearly irrelevant, and which prevented those affected from getting the jobs they wanted. The Justice Committee in their report into the disclosure of youth criminal records criticised the government for appealing our case to the Supreme Court, and recommended serious reforms. So did other reports: the Lammy Review, the Taylor Review into the Youth Justice System. Lord Ramsbotham put a bill before parliament arguing for shorter rehabilitation period. It felt like everyone knew it needed reform. We wondered why not accept that, concede the case, and get on with making the changes so everyone could move on with their lives. But the Defendants in the case: the Home Office and the Ministry of Justice fought it every step of the way. To each and every recommendation, the government responded that they were waiting for the outcome of the Supreme Court case. A case they chose to fight.
We sat in the Supreme Court for three days. We listened to Lord Sumption discuss at length what jobs and in what situations it might be necessary to know that a woman had convictions more than 11 years ago for driving a car where the children weren’t wearing seatbelts. What happens if you want to hire her as a driver of a school minibus? But then, if relevant, wouldn’t it also be relevant to disclose if she had had a single conviction for the same thing? We listened to counsel for the Department of Justice in Northern Ireland explain what great reforms they have now put in Northern Ireland, where all cautions and convictions received in childhood are reviewed when the person turns 18, so most are never disclosed.
Unsurprisingly, and to the delight of our clients, campaign groups, and so many others, the Supreme Court upheld the decision of the lower courts. They declared that the legislation that governed the disclosure regime was incompatible with the European Convention of Human Rights, and pointed out that the entire point of a youth reprimand or caution was that it was supposed to be a diversionary measure, allowing children to move on from their mistakes. Disclosure flies in the face of the very aim and purpose of them. Disclosing a youth caution is a breach of Article 8 and unlawful.
And then after all that excitement we waited for the government to change the law. The government was a bit busy. There was Brexit. There was an election. And then at the beginning of this year we started to hope they were going to make changes… and then March happened.
Once the statutory instruments have passed through Parliament (nearly but not yet there, they are in draft form), youth reprimands, warnings and youth cautions will no longer be disclosed in criminal record checks. Our client can move on with his life after all these years, as can thousands of others.
However the Supreme Court did not go as far as many of us would have hoped. Convictions in childhood are still disclosed. W, a man in his fifties, had a conviction for ABH when he was 16. He received a conditional discharge, and he is still having to disclose it on every single check. There are further reforms needed, as set out in the numerous reports that the government has on this issue. We hope that last week’s change is the first step towards us having a fairer system.