The court was persuaded to make a declaration that Article 6(1) of the Rehabilitation of Offenders (NI) Order 1978 is incompatible with Article 8 of the ECHR pursuant to section 4(4) of the Human Rights Act 1998, by reason of a failure to provide a mechanism by which an applicant can apply to have his conviction considered to be spent, irrespective of the passage of time and his personal circumstances.

Background

The applicant, a 62-year-old man, had been convicted of petrol bombing a house with a group of men, which appeared to be gang-related, when he was 21. He was convicted for possession of a petrol bomb, for which he received a four-year prison sentence, and arson, for which he received a five-year prison sentence.

He was also convicted of two offences of burglary and theft, for which he was sentenced to 12 months’ imprisonment in respect of each offence.

Since that time the applicant has had no involvement with the criminal justice system and has no further convictions. He has completed various qualifications and started a business. He is actively involved in his local community and has had a partner for about the last 14 years, although he has felt too ashamed of his past to tell her about the convictions.

The challenge

The applicant sought judicial review challenging the legality of Article 6(1) of the Rehabilitation of Offenders (Northern Ireland) Order 1978. This provision prevents convictions from being ‘spent’ where the conviction involved a sentence of over 30 months.

He argued this was incompatible with his right to private and family life under ECHR Article 8. He outlined how this has affected his life negatively, such as:

1. He can never apply to the independent reviewer under Schedule 8A of the Police Act 1997 for a decision that his conviction should not be disclosed as part of criminal record checks.

2. He needs to disclose his conviction when applying for insurance (which he asserts has led to refusals, and prevents him from obtaining competitive quotes).

3. He has found it difficult to obtain employment in the past, as a result he started his own business.

4. Others may ask for details of previous convictions. For example, UCAS, mortgage providers and landlords will or may ask about unspent convictions.

5. He will never be permitted to be fully rehabilitated in law.

The applicant also referred to a recent Ministry of Justice paper (2020) on reoffending rates which demonstrated that after seven years without offending, people sentenced to four years are at the same level of risk of reoffending as the general population.

It was contended that this material supports the argument that there is no justification to impose a life-long disclosure requirement on the applicant and others like him.

Article 8 rights

Dr McGleenan, on behalf of the respondent, submitted that any interference with his Article 8 rights was limited. He claimed that the applicant had not been denied the opportunity to rehabilitate.

He pointed out that the applicant has obtained qualifications and employment. He has established permanent and stable relationships and has not reoffended. He is not uninsured. Any interference he submitted was “at the lower end of the scale”.

The court considered the arguments with reference to three pivotal cases:

1. R(JF) v Secretary of State [2010] 1 AC 331- Here, the Supreme Court accepted that a lifetime sexual registry with notification requirements was “capable of causing significant interference with Article 8 rights”. This was because there “must be some circumstances in which an appropriate Tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified.”

2. Gaughran v UK App 45245/15- The ECtHR found that Article 8 had been violated where the Police Service of Northern Ireland had indefinitely retained the applicant’s DNA profile, fingerprints and photograph after he was convicted of a recordable offence.

3. R(P) v Secretary of State [2020] AC 185- The Supreme Court considered spent conviction disclosures, which are permitted under Criminal Record Checks, which apply only to employers “vetting candidates for sensitive occupations” and others who had a pressing need for disclosure.

In P, the court concluded that the scheme was a proportionate interference with Article 8 rights. In particular, it held that it was not disproportionate as a matter of principle to legislate by reference to pre-defined categories where appropriate, even though this might result in cases which individually would be regarded as disproportionate.

According to Lord Sumption, spent convictions could be required by employers because, inter alia, the final determination of an individual’s suitability to a role should be determined by an employer, and there was evidence that employers had not abused this information.

Another key reason, supported by Baroness Hale, was simply that it was practical for employers to assess a candidate, and not have the many disclosure requests be handled by already overburdened courts.

Application

The court, however, distinguished this case from an employment situation. The applicant here was forced to disclose his convictions in many situations, as the scope of disclosure under the 1978 Order goes beyond employers in sensitive occupations.

The court noted that the applicant did not want to avoid having his convictions analysed, should he apply for a particular role where such analysis may be necessary. Rather, he simply sought to address the failure to provide any mechanism where he might apply to have his conviction considered as spent.

In a jurisdiction as small as Northern Ireland, the judge found that a review mechanism would be practical, and the overall process was “not dissimilar to the scheme that has been established by the 2012 Order in relation to the Sexual Offences Notification Requirements”.

Conclusion

Whilst confidence in the justice system is an important consideration, it seemed to the court that the idea that a conviction can never be spent, irrespective of individual circumstances, pays insufficient weight to the interests protected by Article 8.

It seemed to the court that it would be both practicable and proportionate to devise a system of administrative review which would enable persons such as the applicant to apply to have their conviction deemed to be spent.

That system of review would involve consideration of matters such as:

• the circumstances of the conviction;
• the length of sentence;
• the period of time since the conviction was imposed;
• the conduct of the individual since the conviction; and
• his current personal circumstances.

Accordingly, the court was persuaded to make a declaration that Article 6(1) of the Rehabilitation of Offenders (NI) Order 1978 is incompatible with Article 8 of the ECHR.