Note: The UK Supreme Court has ruled on this and similar cases. See Update below.

The case of a 12-year-old boy’s “sexual experimentation” with male friends in a garden shed more than 10 years ago has joined a series of legal challenges to UK policy on maintenance and disclosure of records of “spent” convictions and police cautions.

The boy, G, and his mother had been told in 2006 the record of his “reprimand” (a minor caution for juveniles; see S.65 Crime and Disorder Act 1998) for two counts of sexual assault would be wiped out when he was 18. But when in 2011 he applied for a job in an employment agency at the library of a local college he was shocked to find that the police reprimand appeared on records at the Criminal Records Bureau. He withdrew his application to avoid the reprimand being revealed.

In 2006 Association of Chief Police Officers (ACPO) policy on keeping records had changed from weeding them out after five years if there was no subsequent offending to retention for 10 years. After 2009 it became police policy to retain caution and conviction information until the subject reaches 100 years of age.

G and his mother had been misinformed about the five year period and now he had been caught by the “aged 100 rule”. An appeal by G to the Chief Constable of Surrey for the record to be expunged was rejected.

Legal background

Under the Rehabilitation of Offenders Act 1974 a person does not have to disclose his or her convictions and cautions in answer to questions, for example by employers or prospective employers, to the extent that they are “spent”. But there is a long list of exceptions for sensitive, often professional, jobs. Under the Police Act 1997 (amendments not included in this link) disclosure is required if an employer offering a job under the excepted list asked for “enhanced disclosure” i.e. allowing spent cautions and convictions to be revealed. So the employer would want to know about sexual offences when the job involves children or vulnerable people. But they might also want to hear about brawling, drunkenness or criminal damage. It is up to the police authorities to decide on the “relevance” of the offence to the job – but it is probably easier to just hand over everything. (Note: this regime is separate from the Violent and Sexual Offenders Register.)

The facts

The boy, G, had been reported to social services as a result of inappropriate sexual behaviour with two boys at school. It was found that, aged 11 to 12, he had been involved with three younger boys in consensual sexual acts “ranging from ‘hand jobs’ and extending to ‘bum sex’ with some degree of penile anal penetration”. G had instituted the activity in a game of dares in a garden shed. G was two to three years older than the other boys and the only one of criminal age of responsibility (ie above 10). He acknowledged doing wrong.

The matter was reported to the Crown Prosecution Service which assigned it a gravity factor score of 1 (ie very low) and said this:

“Sexual experimentation by a thirteen-year-old boy and other younger boys. The matter has been investigated by both police and social services who are satisfied that it is not something sinister and serious just misguided. I understand that none of the parents has been demanding tough action either. I can see no benefit in criminalising this behaviour unnecessarily and giving this young man a criminal record …There is a public interest in marking our concern about this behaviour due to its repetition. In view of his age a reprimand is appropriate.”

However, owing to a recent legislative change (Regulations 2000) reprimands were more than mere tellings off by the police; they were now recordable. G’s mother was given a leaflet suggesting a reprimand meant he would “have a record for five years or until … 18 years whichever is the longer”. This was out of date and inaccurate since at the time the 10-year period applied. The judge in the case, Mr Justice Blake accepted the leaflet could have led the mother and G to believe that by 2011 the information would no longer be retained.

The case

G’s lawyers argued that if the mother had known the reprimand would have been kept on file she might have sought legal advice to prevent its being given. Indeed, the police themselves, if properly informed, might have considered the reprimand excessive in the circumstances. It was argued that a reprimand should be deleted from central records (ie the police national computer – though it could be retained elsewhere locally as “intelligence”) if it had been inappropriately issued – the policy of at least one other police authority (North Yorkshire).

Mr Justice Blake rejected this case against the Chief Constable saying: “I am not satisfied that the prosecutor in 2006 failed to have regard to the guidance or that he otherwise reached a decision that was irrational or unlawful.” He said she (the Chief Constable) had a right to take note of the legal requirement to protect children and that G’s conduct occurred multiple times. The reprimand was not unreasonable in the circumstances.

However, against the Government, he found that the retention of the reprimand was contrary to human rights law as an interference with private life (article 8 ECHR) that was disproportionate. It fell within the 2013 ECHR judgment MM v UK (see also a resumé: MM v United Kingdom – 24029/07 pdf) which established “that the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought, might reasonably result in a decision by a public authority applying human rights principles that disclosure was not relevant or necessary”. G had a highly arguable case that “despite the statutory scheme as amended, disclosure of the data to a third party is not relevant and proportionate”.

Regarding the sexual activity he noted that Britain had one of the lowest ages of criminal responsibility and “it was arguably a borderline line case for a reprimand”.



Blake J concluded: “I am satisfied the absence of any procedure enabling these matters to be examined by the decision maker before the case proceeds to this court results in the statutory regime being incompatible with the claimant’s rights.” In other words the fact that there is no process to review the continued holding of the information on the basis of proportionality (including relevance of the offence and time passing) is a breach of human rights law. He granted declaratory relief on this basis – that the decision and legal regime under which it was made was incompatible with the ECHR.



Comment

Mr Justice Blake’s view of the regime regarding caution disclosures is simple enough: it is not “in accordance with law” as any breach of privacy by the state, as a starting point, should be. Only if it were in accordance with the law could the authorities then be allowed to go on to justify it on public policy grounds: that it is “necessary in a democratic society in the interests of national security, public safety … for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. It is not in accordance with the law because laws must have certain characteristics built in to them, in particular a lack of arbitrariness.

This case reveals the law on retention and disclosure in some state of chaos characterised by the apparent absurdity of the “retain until aged 100” rule. The law on retention – derived from Common Law powers for police to retain information to fight crime – is becoming more arbitrary, not less, without minimal provision for individuals to challenge practices of retention and disclosure in their own cases.

Particularly unjust is the changing policy on retention. Until March 2006, any reprimand given to a juvenile would have been weeded out within five years. The policy change meant that until October 2009 such material would have been “stepped down” after 10 years.

Then the policy changed again: it would no longer be “stepped down” since a court case had established retaining the information indefinitely was not in breach of data protection laws (Chief Constable of Humberside and others v Information Commissioner [2009] EWCA Civ 1079). Now the policy is that data be removed on the individual’s 100th birthday – more a system for decluttering the files on set dates than a protection for the individual.

So G and his mother made a decision based on the five-year rule that turned into a whole life in which a teenager’s indiscretion will remain on the file and available for view under the enhanced disclosure system. This system applies to a whole range of jobs – many of them professional and aspirational such as law, education, charity work and even football positions (see R(T), facts below and this full list of exempted jobs). Paradoxically the middle classes are likely to be penalised the most for their teenage follies.



People in police stations who were told, often without lawyers present, that their caution would be wiped off the records after five years will have made decisions about balancing the hassle and expense of challenging the case – at the risk of a court applying a substantive criminal penalty – with just going home and forgetting about it, happy to keep out of trouble for five years – or indeed for the rest of their lives. Many thousands will have been affected in the decade or so running up to the institution of the “aged 100” rule.

The European Court in MM v UK noted the “absence of a clear legislative framework for the collection and storage of data” and said there was a requirement for detailed statutory regulations clarifying the safeguards applicable and setting out the rules governing, inter alia, “the circumstances in which data can be collected, the duration of their storage, the use to which they can be put and the circumstances in which they may be destroyed”.

Such a regime certainly did not exist for those caught retrospectively by the “policy change”. Had they known the record would be kept for the rest of their lives, they could well have made different decisions. G’s case was, inter alia, that “if the mother had been aware of what the consequences really were, she would have sought legal advice to contend that no reprimand should be issued and might have sought judicial review if it had been”.



The case of R(G) v Surrey Police et al did not directly address this issue though it was in the background of the judge’s thinking, noting as he did that “by 2012 reprimands would remain on the Police National Computer (central records) indefinitely or until G was 100 years old”. He therefore did not order the deletion of the record, merely recorded that the regime under which it was held was “not in accordance with the law”.

Subject to appeals in other cases, (see below) the judgment does suggest people caught by the “aged 100” policy change would have strong cases to insist on deletions of their cautions where issues of privacy and proportionality arise and also on grounds of arbitrariness.

Twitter: alrich0660



Note: Nothing in this blog post should be relied upon for accuracy as to the law nor regarded as if it were legal advice.

Update: The cases of Gallagher, P, G and W (see below Recent Cases for background on some of these) have come before the Supreme Court now (January 2019) and the Justices agreed in principle that minor convictions should not be registered with the Barring Service. The Guardian reports here. It says:

“Lord Sumption, delivering the judgment, said existing criminal records rules were disproportionate on two counts: the way in which they required disclosure for multiple convictions even if they were minor and the way they failed to distinguish between warnings and reprimands issued to juveniles, as opposed to convictions.”

Gallagher UKSC judgment pdf

Judgments of UKSC in P, G and W

The principle set out was: “an excessively broad discretion in the application of a measure infringing the right of privacy is likely to amount to an exercise of power unconstrained by law. It cannot therefore be in accordance with law unless there are sufficient safeguards, exercised on known legal principles, against the arbitrary exercise of that discretion, so as to make its application reasonably foreseeable.” Sumption went on to say:

“This decision [MM v UK, see above] is treated by the respondents [for G et al] as authority for the proposition that a measure may lack the quality of law [ie on the legality test] even where there is no relevant discretion and the relevant rules are precise and entirely clear, if the categories requiring to be disclosed are simply too broad or insufficiently filtered. I do not accept this submission.”



And further: “The principle of legality is concerned with the quality of the domestic measure whereas the proportionality test is usually concerned with its application in particular cases. Unless the domestic measure has sufficient clarity and precision for its effect to be foreseeable from its terms, it is impossible for the court to assess its proportionality as applied to particular cases. But if the effect of the measure in particular cases is clear from its terms, there is no problem in assessing its proportionality.”

The rules governing the Barring Service and AccessNI (the Northern Irish version) regarding categories of disclosable convictions and cautions were clear and entailed no discretion, so:

“There is no difficulty at all in assessing the proportionality of these measures because, subject to one reservation (see the following paragraph), their impact on those affected is wholly foreseeable.”

So the system was in accordance with the law. However, the disclosure system was found lacking in terms of proportionality in two areas: that all previous convictions have to be be disclosed, however minor, where the person has more than one conviction; and also in the case of warnings and reprimands issued to young offenders.



Of interest: The Standing Committee for Youth Justice has published this report saying that the effect of the criminal record system on children is punitive and holds them back from reaching their full potential in adulthood.



Note on Links: The Government does not speedily update its legislation on the internet. Links to such official sites therefore do not necessarily have the most up to date version of the legislation – even several years after amendment.



Legal background

Blake J provided much background material in case law and international agreements relevant to the case. He noted that the 1987 Council of Europe Committee of Ministers Recommendation No R (87) 15 regulating the use of personal data in the police sector, adopted by the UK, says:

“2.1 The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.”

The document’s Principle 7.1 requires measures to delete personal data kept for police purposes if they are no longer necessary for the purposes for which they are stored, taking account of criteria including rehabilitation, spent convictions and the age of the individual involved.

Blake pointed to this quote in the line of case law: “As the conviction or caution itself recedes into the past, it becomes a part of the person’s private life which must be respected” (which draws on MM v UK and Lord Hope in R (L) v Commissioner of Police for the Metropolis [2009] UKSC 3 at para 27). This is particularly so given the reprimand was given in private. It was stated in MM v UK:

“the court highlights the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. It further refers to the absence of any mechanism for independent review of a decision to retain or disclose data”.

In other words there was no clear legal sanction and if such sanction were created it would have to give the individual rights to challenge the retention or release of the information based on privacy principles and proportionality. So, as established in Malone v United Kingdom (1985) 7 EHRR 14 the phrase “in accordance with the law” in Article 8(2) of the European Convention (“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society …”) implies that “the law must … give the individual adequate protection against arbitrary interference” (para 68).

The Council for Europe’s 1984 Recommendation No R 84 (10) says states should: “provide that the information mentioned on the criminal record will be communicated only in the form of extracts whose content will be strictly limited to the legitimate interest of the recipients”. Various international instruments sought to protect juvenile offenders from the unnecessary disclosure of their criminal records particularly in relation to their rehabilitation.

In R(T and Others) (Supreme Court) Lord Reed said:

“That a person should in practice be required throughout his adult life to disclose the fact that he committed a minor offence as a juvenile, if he wishes to pursue a wide range of careers, is difficult to reconcile with these provisions, in the absence of what recommendation 10 of Recommendation R (87) 20 [on juvenile delinquency] describes as ‘compelling grounds’.”

Materials

The full case of R (G) can be read here: R(G) v Chief Constable of Surrey et al (thanks to Bailii)

The case that brought about legal amendment in 2013:

Court of Appeal: R (T) v Chief Constable of Greater Manchester Police & ors. [2013] EWCA Civ 25

Supreme Court: R (T) v Chief Constable of Greater Manchester Police & ors. [2014] UKSC 35

This was a case of a child of 11 receiving two police warnings for stealing bikes. They appeared on an enhanced search when he applied to work for a footbal club aged 17 and when he applied for a university sports studies course at 19. The courts found mandatory and blanket disclosure of convictions as part of a criminal records check was incompatible with Article 8 of the European Convention on Human Rights. The Supreme Court said: “In order for the interference [with privacy] to be ‘in accordance with the law’, there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined”.

New rules: Legislation on filtering rules to restrict the disclosure of old and minor convictions came into force in May 2013: Notes here (pdf). It requires that information handed to employers “should be reasonably believed to be relevant for the prescribed purpose for which the certificate is being sought”. (Guidance 2015)



Recent cases subject to appeal:

R (on the application of) W v Secretary of State for Justice [2015] EWHC Admin 1952

Applicant sought to be a teacher but had an assault conviction 31 years earlier, disclosable under the rules. Judge ruled actual bodily harm conviction could continue to be disclosed since it was a serious offence.

Gallagher’s Application [2015] NIQB 63 Job offer for care worker withdrawn after six car seatbelt convictions disclosed (including not strapping up children in the back seat) – which the applicant did not reveal on her job application. The employer deemed this “a serious breach of trust”. As care is an exempted job, even minor spent convictions should be revealed. The court found, however that “automatic disclosure of this Applicant’s convictions violates art 8 of the ECHR”.



R (on the application of P and A) v Secretary of State for Justice [2016] EWHC 89 (Admin) Judges allowed applicants’ case that the revised statutory scheme on disclosure failed the legality and necessity tests under Article 8(2) of the ECHR, Lord Justice McCombe saying: “the present rules can give rise to some very startling consequences. Such results are, in my judgment, properly to be described as ‘arbitrary’.”



The recording of crime

Under current law cautions in general (simple cautions) are “spent” immediately, meaning the individual cautioned does not have to reveal them when applying for jobs, other than excepted jobs (conditional cautions are spent after three months).

However, an individual who is convicted of any recordable offence or cautioned, reprimanded, warned or arrested for such offences will have a “nominal record” placed on the Police National Computer. An individual’s nominal (ie by name) record is retained until his/her 100th birthday. There are about 12 million nominal records on the system of which about 10 million are criminal records.



The Disclosure and Barring Service (in England and Wales – which replaced the Criminal Records Bureau) is available for checks in the excepted positions under the rehabilitation legislation, including those involving work with children or vulnerable adults (also lawyers, police, people putting in burglar alarms). The service uses the Police National Computer.

If a person applies for an “excepted position”, then the prospective employer is entitled to ask for details of both spent and unspent convictions, cautions, reprimands and warnings by way of a criminal records check conducted by the Disclosure and Barring Service. Non-conviction information can also be revealed (eg arrests that led to no action) if the chief officer “reasonably believes it to be relevant”.

Since R (on the application of L) v Comr of Police of the Metropolis the chief officer must also consider proportionality eg gravity of the information, reliability, the effect of disclosure. (The Protection of Freedoms Act 2012 took on board some of the concerns about the criminal records and vetting and barring regime.)



Chief constables have discretion to delete cautioning information and other non-court disposals from the national records. There is guidance to ensure consistent practice which restricts deletions to situation where innocence is subsequently proved (an example given is if what looked like murder turns out to have been a natural death).



See also: Sunita Mason Review of criminal records regime

Guidance on deletions of cautions etc: NPCC (pdf)



Parliamentary briefing: Retention and disclosure (pdf) 2015



Police guidance on youthful sexual activity says:

“If the sexual act or activity was in fact genuinely consensual and the youth and the child under 13 concerned are fairly close in age and development, a prosecution is unlikely to be appropriate. Action falling short of prosecution may be appropriate. In such cases, the parents and/or welfare agencies may be able to deal with the situation informally. There is a fine line between sexual experimentation and offending and in general, children under the age of 13 should not be criminalised for sexual behaviour in the absence of coercion, exploitation or abuse of trust.” (CPS Guidance on Rape and Sexual Offences Chapter 11)

The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI 2013/1200)

The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (SI 2013/1198)

Exceptions to “spent” convictions under the Rehabilitation for Offenders Act:

“There are certain exceptions, where you do have to disclose your caution or conviction (even if it is spent). These are listed on the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and subsequent amendments. The positions listed in the Exceptions Order primarily relate to particularly sensitive areas such as work with children and vulnerable adults, work in law enforcement and the legal system, and high level financial positions. Exceptions also apply to certain licences (such as a Security Industry Authority licence) and to certain legal proceedings. Where an exception to the Rehabilitation of Offenders Act exists then you must list all cautions and convictions, even if they are spent.” (MoJ: What is the ROA 1975? pdf)

New guidance on the Rehabilitation of Offenders Act that came into force in March 2014 is here (pdf). It follows changes made in the Legal Aid, Sentencing and Punishing of Offenders Act 2012. Under the question: Will my conviction be removed from my criminal record once it is spent? Will caution and conviction information be removed from my criminal record after a certain period of time? it says:

“Current police policy is to retain all caution and conviction information until the subject reaches 100 years of age, for police operational reasons and in the interest of the prevention and detection of crime. The disclosure of information about spent convictions and cautions on a standard or enhanced disclosure certificate is justified in order to mitigate risks in the workplace, which are present for particularly sensitive purposes and positions, and to inform criminal and other tribunal proceedings.

If the information is not relevant, it should not count against the individual concerned. The Disclosure and Barring Service Code of Practice requires registered bodies have a fair and clear policy towards ex-offenders and not to discriminate automatically on the basis of a conviction or caution.

Chief officers of police are responsible, as data controllers, for information stored on police systems by their force and, in exceptional circumstances, may agree to remove information from an individual’s record. However this is only where compelling reasons exist and it is a matter for the individual to raise directly with the chief officer of police concerned.”

Crown Prosecution Service advice notes:

“The 2003 [Sexual Offences] Act protects all children from engaging in sexual activity at an early age, irrespective of whether or not a person under 13 may have the necessary understanding of sexual matters to give ostensible consent … However; prosecutors may exercise more discretion where the defendant is a child … it is not in the public interest to prosecute children who are of the same or similar age and understanding that engage in sexual activity, where the activity is truly consensual for both parties and there are no aggravating features, such as coercion or corruption. In such cases, protection will normally be best achieved by providing education for the children and young people and providing them and their families with access to advisory and counselling services.”