HA v University of Wolverhampton [2018] EWHC 144 (Admin)
The High Court has quashed the decision of the University of Wolverhampton to expel a student from an accredited Master of Pharmacy degree course for convictions relating to offences committed when he was 14 years old.
Details
The claimant had two convictions for assault and robbery. He had committed the offences aged 14, some 7 years prior to this case being heard. Although he initially failed to disclose the convictions on his application form he then notified a lecturer and was subsequently prevented from continuing with the course. It was held:
- The university was entitled to require the claimant to disclose spent convictions and to obtain an enhanced criminal record check (paragraphs 82-117).
- The disclosure of spent convictions and ECRC requirements did not infringe the claimant’s ECHR article 8 rights. The claimant’s convictions formed part of his private life and the disclosure requirement interfered with his article 8(1) rights. However, disclosure was sought for the purposes of public safety and protection, and was therefore for one of the specified purposes in article 8(2) (paragraphs 127 – 158).
- The decision to exclude the applicant was unlawful. The panel’s reasoning was flawed. It had not properly taken into account the considerable mitigating circumstances, in particular these offences were committed when the applicant was a child. In Wednesbury unreasonableness terms, it had ignored a highly relevant matter when reaching its decision. The panel failed to strike a proportionate balance between the protection of the public and the claimant’s rights (paragraphs 159-180).
Commentary
This case highlights the current problems with the retention and disclosure of childhood criminal records. There is a lack of clarity for children and young people on what and when they have to disclose cautions or convictions. As in this case, the complexities of the criminal record regime mean children receive inaccurate and incomplete information from the youth court and Youth Offending Team about whether they will have a disclosable criminal record in the future.
This is a concerning issue and follows the recent case of R. (on the application of R) v National Police Chief’s Council [2017] EWHC 2586 (Admin). The Supreme Court will be considering the legality of the criminal records regime, in the appeal of the Court of Appeal’s ruling that the current regime is unlawful R. (on the application of P) v Secretary of State for the Home Department [2017] EWCA Civ 321.