The Court has upheld a declaration of incompatibility under the Human Rights Act 1998 made by the Court of Appeal and the High Court. In a landmark judgment the Supreme Court has found that the “filtering rule” which govern when previous offences have to be disclosed on enhanced criminal criminal records checks are a disproportionate interference with the individual’s Article 8 rights. The case was brought by Just for Kids Law represented by Tim Owen QC of Matrix Chambers and Quincy Whitaker of Doughty Street Chambers, on behalf of G.
The Court has upheld a declaration of incompatibility under the Human Rights Act 1998 made by the Court of Appeal and the High Court. Giving the leading judgment of the court Lord Sumption found two aspects of the current rules to be disproportionate – firstly the “multiple conviction rule” which means that anyone who has more than one conviction will always have all their convictions disclosed. And secondly the disclosure of youth reprimands and warnings (now replaced by youth cautions).
The current filtering rules have been in place since the earlier case of R (T) v Chief Constable of Greater Manchester Police  UKSC 35. Prior to the case of R v T every single caution or conviction ever received was disclosed in an enhanced criminal record check. In R v T the Supreme Court held such blanket and indiscriminate disclosure to be unlawful, and the government introduced the filtering rules in response. The filtering rules in place mean that cautions for certain offences are filtered, and single convictions for certain offences that did not result in imprisonment are also filtered. Everything else remains to be disclosed for the entirety of the person’s life.
Those rules were challenged in these joined appeals to the Supreme Court. The leading judgment, which is given by Lord Sumption gives a narrow interpretation of the previous case of T. It finds that the current disclosure system is in accordance with the law, and for a large part, proportionate within the meaning of Article 8. However, in two key respects the current regime is disproportionate. The court found that the multiple conviction rule leads to arbitrary results, and whilst the aim of the rule is legitimate, namely that repeat offending should lead to disclosure, the practical effect of the rule means that disclosure can be made even when there was only a single incident that led to more than one conviction, and other such circumstances where disclosure is unlikely to be justified.
The second respect in which the regime has been found to be disproportionate is that of youth reprimands. Youth reprimands and warnings were replaced under Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 with youth cautions, but the respondent G, whose case was before the Supreme Court, had two youth reprimands which he received as a child for incidents that occurred when he was 11 and 12 years old. The judgment, at para 64, states that reprimands are a rehabilitative and a diversionary measure, Sumption points out that no consent is needed to receive one. It is, the Court finds, therefore disproportionate for them to be disclosed in criminal record checks.
The matter will now be for Parliament to consider how to implement the necessary changes and to give effect to the ruling.
This will have a huge effect on the thousands of children who receive cautions every year. Many of whom already assume that a diversionary measure that they receive at the police station, which is seen as a way of avoiding going to court and being criminalised, will not affect their employment in later life. For some it is a nasty shock when they do try to pursue their chosen career to find that incidents that occurred in childhood, and long since put behind them are disclosed to employers.
This judgment follows much criticism from many quarters. The justice select committee have widely condemned the current criminal records regime, which fails in many ways to distinguish offending as children from offending as adults, and, it found, undermines the very aims of the youth justice system, as it continues to stigmatise people for offences committed as children throughout their entire lives, without allowing them to move on.
It remains to be seen what the government make of the judgment. Whilst the judgment itself only finds two aspects of the filtering rules to be disproportionate under Article 8, those are two central parts of the filtering rules, it is difficult to see how those parts can be changed without looking at the whole scheme. Further, the government will also need to respond to the Justice Select Committee report, which called for far wider changes to the system.
The judgment will also be considered for its analysis of Article 8, and the definition of “not in accordance with the law”. Sumption’s analysis of Lord Reed’s judgment in T is likely to be controversial, and certainly differs from the analysis of the Court of Appeal and from Kerr, who provides a dissenting judgment in this case.
Image by Jay Galvin via Flickr