Yesterday the Supreme Court handed down a judgement with respect to the disclosure of past criminal records. This litigation had been ongoing for a number of years, including numerous claimants and campaign groups. The judgement can be found here: R (on the application of P, G and W) (Respondents) v Secretary of State for the Home Department and another (Appellants)
The three main issues that were addressed by the judgement was whether the two conviction disclosure rule was fair, whether the mandatory disclosure of proscribed list (offences that will never be filtered from a DBS certificate) youth final warnings and reprimands was fair, and also whether the mandatory disclosure of an adult proscribed list conviction was fair.
Two Conviction Rule
With respect to the the two conviction rule, the Court found that it did work an injustice and ought to be amended by the government, the majority ruling stated as follows:
Its rationale is that the criminal record of a serial offender is more likely to be relevant to his suitability for a sensitive occupation, because the multiplicity of convictions may indicate a criminal propensity. In itself, that is an entirely legitimate objective of a legislative provision of this kind. The rule as framed is, however, a particularly perverse way of trying to achieve it. It applies irrespective of the nature of the offences, of their similarity, of the number of occasions involved or of the intervals of time separating them. As framed, therefore, the rule is incapable of indicating a propensity. It may coincidentally do so in some cases, but probably does not in a great many more. Its eccentric consequences may be illustrated by the facts of the two appeals in which the multiple conviction rule was the basis on which disclosure was required, those of P and Lorraine Gallagher. In P’s case the two minor thefts for which she received a caution and a conviction were only disclosable because she had also failed on the second occasion to surrender to her bail. These offences were not only too minor but too disparate to suggest a propensity to even the most suspicious mind. As to Ms Gallagher, I have already observed that her failure on two occasions to secure children in the back of her car might have been relevant to her proposed employment if it had involved driving children about. But, even if she had not committed a further offence in 1998, her convictions of 1996 would have been disclosable simply because there were four unsecured persons in the car at the time, each of whom gave rise to a distinct conviction. A rule whose impact on individuals is as capricious as this cannot be regarded as a necessary or proportionate way of disclosing to potential employers criminal records indicating a propensity to offend.
Adult Proscribed List Offences
For proscribed list offences the Court took a much more strict approach. The claimant W had been convicted for assault occasioning actual bodily harm (ABH). ABH is a proscribed list offence and falls to be permanently disclosed on both a standard and enhanced DBS check. The court ruled that the mandatory proscribed list disclosure regime was within the government’s, ” margin of judgment properly allowed to the legislator or the Secretary of State on whom the legislator has laid the task of defining the exceptions to the rehabilitation regime”. The court stated that although the regime may sometimes work injustices, that pre-defined disclosure categories needed to be drawn. The Court stated the following with respect to W’s case:
Disclosure by categories must inevitably produce a disproportionate impact in some cases. In my opinion, it was legitimate to include assault occasioning actual bodily harm among the offences which were sufficiently serious to require disclosure. It is a violent offence which may be extremely serious. As Simon J pointed out, it may attract an extended sentence of imprisonment. It was also legitimate not to include a temporal limit in the definition of the category of violent or sexual offences requiring disclosure. Any temporal limit would have risked the non-disclosure of the worst cases in the category. The limit would presumably have had to vary with the offence. There would be complex additional problems of definition, thereby making the scheme notably more complex than it already is. For example, a provision imposing a temporal limit on serious offences would presumably have had to differentiate between cases where the offender went on to commit further such offences and cases where (like W) he did not. I cannot regard the existing categorisation as illegitimate, or as notably more problematical than any other categorisation. Hard cases like W’s must ultimately be left to the judgment of employers. I have given my reasons for believing that in the generality of cases they can and must be trusted to exercise that judgment responsibly and in accordance with the statutory guidance given to the “registered persons” who sponsor them.
The Court stated it was necessary for the categories of disclosure, in W’s case the proscribed list, to be be drawn in a proportionate way. Given the government recently amended the list it may mean that the government already feels the list is proportionate, although there may be plans to introduce a discretion to the disclosure of proscribed list offences: Government Response to the Justice Committee’s First Report of Session 2017–19: Disclosure of Youth Criminal Records (see page 8, Recommendation 20).
The court did not expressly address proscribed list adult cautions, but the court did clearly make a distinction between adult cautions and youth reprimands/warnings, in particular the court noted that the latter did not require consent, “and does not involve the determination of a criminal charge”. It is therefore likely that the proscribed list rule will remain in place for adult police cautions, although an additional discretion may be given to the police to filter, “based on the relevance of the offence to the activity and whether disclosure would be proportionate to protecting the public interest, taking into account the age of the offence, the age of the individual concerned at the time of the event, and their intervening conduct”.
Youth Reprimands and Final Warnings
With respect to youth final warnings and reprimands the court found the mandatory disclosure regime to be unfair. The Court stated as follows:
A caution administered to an adult requires consent. However, a warning or reprimand given to a young offender whose moral bearings are still in the course of formation, requires no consent and does not involve the determination of a criminal charge. Its purpose is wholly instructive, and its use as an alternative to prosecution is designed to avoid any deleterious effect on his subsequent life. Its disclosure to a potential employer would be directly inconsistent with that purpose. In my view the inclusion of warnings and reprimands administered to a young offender among offences which must be disclosed is a category error, and as such an error of principle. I would expect the same to be true of the current regime governing youth cautions, but we were not addressed on that question and it is neither necessary nor appropriate to decide it on this appeal.
The judgement did not address disclosure with respect to the current youth regime, namely youth cautions – but it is likely that any disclosure regime that is applied to the old youth reprimand/warning regime, would also apply to the current youth caution regime. A youth conditional caution does however require a youth’s consent before it is administered, and so it may be considered to have similarities with an adult caution.
It is to be seen how the government will interpret the Supreme Court’s ruling, it might be interpreted to mean that proscribed list youth warnings/reprimands will no longer be mandatorily disclosed after a certain period of time, or they may only be disclosed on a discretionary basis if the facts and circumstances require it. We will have to wait and see the government’s response.
One unintended consequence of always filtering proscribed list youth cautions may mean that where more serious offences are alleged, such as sexual assault, that the police/CPS will be less likely to offer a youth caution, and prefer to prosecute instead.
Deletion of Police Records
We also have significant experience of applying for removal of details from DBS certificates, including non-conviction records held on the PND.
Also if you have been barred by the DBS from working in a regulated activity, or are currently undergoing the barring process, we can help.