Comparing the European Court of Human Rights’ (ECtHR) 2008 decision in S. and Marper v. the United Kingdom with the U.S. Supreme Court’s 2013 decision in Maryland v. King provides a window on the very different legal status of criminal records in the Europe and U.S. S. and Marper also illuminates the growing chasm between the U.K. and continental Europe when it comes to informational privacy and police records. As illustrated in prior posts, many criminal justice practices that are common in the U.S. are regarded as a serious invasion of privacy in Europe, and therefore a human rights violation. As evidenced by the caselaw discussed below, this includes the blanket and indefinite retention of DNA and fingerprint information.
Author Archives: Elena Larrauri
This is the most recent in a series of posts by Professors James Jacobs and Elena Larrauri comparing criminal records disclosure policies in the United States and Europe. The decision of the European Court discussed below invalidated a policy of the United Kingdom authorizing broad disclosure of non-conviction records relating to child victims. (The U.K.’s policies on disclosure are closer to those of the U.S. than they are to those of continental countries.) While the U.K. has subsequently narrowed its disclosure policy, it remains to be seen whether even as amended the U.K.’s disclosure policy will pass muster under the European Convention on Human Rights.
This is the fourth post in a series about European law and policy on criminal records by Professors Jacobs and Larrauri. Prior posts noted that public access is never allowed where a record has been expunged. This post discusses the types of records that are eligible for expungement, how the expungement process works, and what the effect of expungement is. (Professor Larrauri’s more detailed discussion of “judicial rehabilitation” in Europe is available here.) – Eds.
Just as there are variations in eligibility for and consequences of expungement in U.S. states, there are differences in detail in continental European countries. We focus on Spain, which we know best, though we have no reason to believe that Spain is an outlier when it comes to European countries’ law and policy. (As in most all criminal record matters, the U.K. is more like the U.S. than continental Europe, making expunged records more accessible to the public than they are on the Continent.)
To the American eye, Europe seems unconcerned about criminal record-based employment discrimination (CBED). (The U.K. is an exception.) Is this because European employers do not discriminate against job applicants or employees with criminal convictions? If so, is that because European countries prohibit CBED, prevent employers from obtaining individual criminal history information, and/or provide potent remedies to people with convictions who are discriminated against? Or, perhaps European employers believe that CBED is immoral or irrational because past criminal convictions have no value in predicting future conduct on or off the job? Still another hypothesis is that, while Europeans believe that prior convictions are predictive of future dishonesty, dangerousness and unreliability, they also believe that CBED should be prohibited in order to further more important goals like rehabilitation and social harmony. Finally, perhaps employers in Europe do discriminate, but such discrimination has not been revealed through empirical research. While there is no body of research on European CBED comparable to the employer surveys and field studies done in the U.S., there are some generalizations that can be made.
There is no body of research on European criminal record-based employment discrimination (CBED) comparable to the employer surveys and field studies done in the United States. While European concern for informational privacy keeps criminal records out of the public domain, European countries do not prohibit employment discrimination based on criminal record. In fact, as in the United States, European countries make certain criminal records disqualifying for a vast range of public sector and some private sector employments.
This posting provides background on European, and especially Spanish, mandatory CBED. Our next posting provides background and discussion on discretionary CBED by private employers.
A comparative perspective is extremely useful for appreciating the status of individual criminal record information in the U.S. In this and future blog posts, we would like to share information about criminal record law and policy in continental Europe and the U.K., including some important decisions of the European Court of Human Rights.
We begin with Spain, the continental European country we know best. On the basis of past and on-going research, we believe that Spain’s law and policy on criminal records is representative of continental Europe. This is not surprising because, to some extent, all E.U. member states share a legal tradition and are subject to E.U. laws and ECHR’s judgments. However, to be sure, there are some national differences among E.U. member states.