On January 30, 2019, the UK Supreme Court issued a significant decision largely upholding the UK’s categorical rules for when criminal records are disclosed to employers, but declaring two key rules incompatible with privacy rights under the European Convention on Human Rights.  The first rule in question, the so-called multiple conviction rule, automatically requires people who have more than one conviction to disclose all prior convictions on “standard” and “enhanced” records checks.  (As explained below, the UK disclosure scheme provides for three levels of checks, depending on the nature of the employment involved, the two specified being the more in-depth.)  The second rule requires that certain youth reprimands and warnings—administered without an admission or determination of criminal charges—be disclosed on both types of checks.  CCRC contributor Alessandro Corda posted about this case this past July when it was being considered by the court and Christopher Stacey, co-director of a charity organization that intervened in the case, who attended the three days of hearings, provided guest commentary.

The decision has significant implications for the employability of people with criminal records in the UK and could offer policy lessons for the US.  It is therefore worth discussing in some detail.

Four people, Lorraine Gallagher, “P,” “W,” and “G,” brought the underlying challenges to UK criminal records disclosure rules that made it more difficult for them to find or maintain employment for which an in-depth records check is required (as relevant here, working in proximity to children and vulnerable adults).  The Court of Appeal for Northern Ireland (in the case of Lorraine Gallagher) and the Court of Appeal for England and Wales (in the cases of P, W, and G) upheld their claims, and the government appealed to the Supreme Court, where the cases were consolidated.  Let’s begin with the stories of these four individuals, then look at the basics of the UK criminal records disclosure framework and European Convention on Human Rights.  We will then turn to the court’s decision.

Facts

•  Lorraine Gallagher is 54 years old.  In 1996, she drove her three children to a post office and they were not wearing seatbelts.  She was stopped by the police, and was prosecuted and convicted for failure to wear a seatbelt, and failure to ensure that her children wore theirs, resulting in a £85 fine.  In 1998, she was driving her children home from school, when her two sons in the backseat placed the shoulder straps under their arms, which is an improper attachment.  She was prosecuted and convicted for allowing children to be carried without properly fastened seatbelts, with a £80 fine.  In 2010, she started a course to qualify as a social carer and obtained qualification in 2013.  In 2014, she applied for a position at a day centre for adults with learning difficulties, revealing the 1996 convictions regarding her children, but not the 1998 convictions, believing they had been “wiped,” or expunged, and were “not major.”  She received a conditional offer of employment, which was later withdrawn after a criminal record check, based on her failure to disclose the 1998 convictions.
•   P is in her late 40’s, has a degree in education and languages and a certificate to teach English as a foreign language.  She taught English in Spain and Greece, but returned to the UK in 1997, experiencing undiagnosed schizophrenia and eventually homelessness.  In 1999, P received a caution (a formal warning with a guilty admission) for the theft of a sandwich from a shop; later that year she was convicted of theft of a book worth 99p and failing to appear on that case, receiving a conditional discharge.  In 2000, she was admitted to a hospital, diagnosed, prescribed medication, helped to obtain housing, and assigned a social worker and psychiatry care.  Since 2003 she has had her condition under control.  She is qualified to work as a teaching assistant but has been unable to secure a position due to requirements that she disclose her record.
•   W is 52 years old. When he was 16, after a fight between a number of boys after school, he was convicted of assault occasioning actual bodily harm.  He was given a conditional discharge for two years and bound over to keep the peace and be of good behavior for 12 months.  In 2013, he began a course to obtain a certificate in English language teaching to adults.  He was required to disclose his record, and although he was allowed to take the course, his record is very likely to prejudice his ability to obtain employment.
•   G was working as a library assistant in a local college in 2011, when he was required to apply for an enhanced criminal record check because his work involved contact with children.  In 2006, G, at age 13, had been arrested for sexually assaulting two younger boys.  The police record indicated that the activity was consensual, was in the nature of “dares,” and was motivated by “curiosity and experimentation,” by all the boys.  The prosecutor decided it was not in the public interest to prosecute but gave G two police reprimands. For the library record check, the police proposed to disclose the reprimands, with an account of the mitigation.  G decided to withdraw the application and lost his job.

In summary, the required disclosure of relatively dated and minor offenses caused these four individuals to experience difficulty obtaining and holding jobs.

Background

The four individuals challenged the UK records disclosure rules that applied in their circumstances as being incompatible with the right to privacy under Article 8 of the European Human Rights Convention.  A detailed summary of how the UK disclosure regime works comes from our previous post on this case:

Following the adoption of the Rehabilitation of Offenders Act in 1974, adult and juvenile convictions automatically become “spent” after the passage of a certain amount of “rehabilitation” time following completion of the sentence if the punishment imposed in court did not exceed a certain threshold provided for by the law (currently, a custodial sentence of over four years). Convictions triggering a custodial sentence of more than four years can never become spent.  Required periods of post-sentence rehabilitation before a conviction is considered spent currently range from one to seven years for adult convictions, and from six months to three and a half years for juvenile offenses.  There is no rehabilitation period before criminal records not resulting in conviction are considered spent.

There are three levels of criminal background checks administered by the Disclosure and Barring Service (DBS), a non-departmental public body of the Home Office. Such different levels of criminal record checks depend on the type of job a person is applying for and related duties.

(1)    Basic level checks: this type of check contains only details of all unspent convictions. Any person one can apply for a basic check and employers can ask all job applicants to apply for a basic check during the hiring process. It potentially applies to each and every position and it is commonly used for jobs in the retail and hospitality industry as well as office work.

(2)     Standard level checks: A standard check discloses an individual’s spent and unspent convictions, cautions (a strong formal warning where you have to admit an offense and agree to be cautioned), and simple police warnings. This more in-depth check is often required for careers such as medical practitioners, lawyers, and accountants.

(3)    Enhanced level checks: this level of check discloses an individual’s full criminal record, reporting spent and unspent convictions, cautions, police warnings and also information held by the Disclosure and Barring Service (for positions in regulated activity) and by the police that is relevant to the role applied for. Enhanced checks are normally required for individuals who wish to work with vulnerable populations such as children, people with disability, and the elderly.

In early 2013, a court case known as ‘T’ found that the automatic disclosure of all convictions and cautions—therefore including both spent and unspent ones—in standard and enhanced checks was disproportionate, and therefore incompatible with the right to private life under article 8 of the UK Human Rights Act. After initial resistance, the Government responded to this case by introducing a so-called filtering system by means of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) Order 2013. The 2013 Amendment Order identified which convictions and cautions can no longer be disclosed in standard and enhanced checks.

In a nutshell, the 2013 Amendment Order established the following: single convictions (meaning that the person has no other conviction on record) for listed non-violent, non-sexual offenses that did not lead to a custodial sentence or a suspended sentence are currently filtered out after 11 years (or after five years and six months if the offender was a minor at the time of the offense) since the date of the conviction. In regard to cautions, the filtering mechanism applies if the caution does not relate to a listed violent or sexual offense and if six years or more (for adults) or two years or more (for minors) have elapsed since the date on which the caution was given.

In summary, certain convictions and cautions are regarded as “spent” after a specified period of time, so that they do not appear on most criminal records checks, but do appear on more in-depth checks.  But a 2013 court decision found that the disclosure of all convictions, cautions, and warnings on in-depth checks was not compatible with Article 8.  In response, the government created new exceptions for in-depth checks, so that after a certain period of time: (1) single convictions for listed non-violent, non-sexual offenses that did not lead to a custodial or suspended sentence are filtered out; and (2) cautions (as well as youth reprimands and warnings) that do not relate to listed violent or sexual offenses are filtered out.  In addition, in 2016, Northern Ireland enacted a system for administrative review of individual cases falling within one or the other of the two in-depth categories, to decide whether they should nonetheless be filtered out.  (A more “granular” filtering has been applied in Scotland to cases involving risks to vulnerable groups since 2007, but Scotland’s rules are not at issue in this case.)

In the case at hand, the UK Supreme Court was tasked with deciding whether several aspects of the revised disclosure regime are compatible with Article 8.  This article has two provisions. The first defines the right: “Everyone has the right to respect for his private and family life, his home and his correspondence.” The second describes the conditions under which governments may lawfully interfere with that right: “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 in the interests of national security, public safety or the economic well-being of the country, 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.”

The end result is that a law which interferes with privacy rights must satisfy three tests drawn from the second provision of Article 8 in order to be compatible with the Convention: the “legality” test (the law must be in accordance with domestic law), “necessity” (the law must be necessary for a legitimate purpose), and “proportionality” (the law must use a proportionate means of achieving the purpose).

The parties in this case agree that mandated disclosure of criminal records interferes with privacy rights, but disagree about whether the disclosure regime is legal and proportional under the Convention.  In the lower courts, the four individuals challenged several disclosure rules, including the multiple conviction rule (a person with more than one conviction of any kind must disclose all convictions on standard and enhanced checks), the serious offense rule (any “spent” conviction, caution, warning, or reprimand with respect to certain specified offences must be disclosed on standard and enhanced checks), and the self-disclosure rule (all convictions must be self-disclosed where enhanced checks are required) as being incompatible with the Convention. The lower courts declared the rules incompatible, which the Courts of Appeal upheld, finding that the current legislation is neither legal nor proportional.  While they rejected the suggestion that the Convention requires a system of review allowing each case to be evaluated on its own facts, they held that the different categories of offences and convictions that must be disclosed are too broad and therefore may “operate arbitrarily in a significant number of cases.”

Decision

At the Supreme Court, all five justices concluded that the scheme fails the proportionality test, but split 4-1 on the issue of legality.  Lord Sumption, writing for the majority, observed that these cases “raise problems of great difficulty and sensitivity,” which turn on two competing public interests: the rehabilitation and successful reintegration of people with a criminal record; and public safety concerns where people have a record that “suggests that there may be unacceptable risks in appointing them to certain sensitive occupations.”

Lord Sumption wrote a majority judgment for three justices, and Lady Hale authored a concurrence for two justices, all four concluding that the current records disclosure legislation satisfies the legality test, but fails the proportionality test in part with respect to the multiple conviction rule and the serious offense rule as applied to youth warnings and reprimands.  Lord Kerr dissented, explaining that he would find that the records disclosure regime fails both the legality and proportionality tests.  Let’s look at legality and proportionality in turn.

Legality

For legislation to be compatible with the rule of law, it must be accessible to the person concerned, and its consequences must be foreseeable, such that there is adequate protection against arbitrary interference with human rights, and such that the legislation’s proportionality be assessed.  Mrs. Gallagher, P, W, and G argued that the criminal record disclosure rules are too broad and not subject to individual review, and therefore the legislation lacks safeguards against arbitrary application, and does not have the quality of law.

The majority rejected their argument, concluding that the legislation satisfies the legality test, because its rules for disclosure are precisely defined, and provide for mandatory disclosure without any discretion (except one minor form of discretion that is not relevant for our purposes).  Therefore, the majority concluded that the legislation has the quality of law because there is no difficulty in determining its consequences or being able to assess its proportionality.

Lord Kerr in dissent would have found that the legislation is not in accordance with law because the cases of Mrs. Gallagher, P, W, and G show there is potential for widespread disproportionate outcomes in the disclosure of data.  And there is “no way of calculating whether the scheme as a whole works in a proportionate way.”  To give the legislation the quality of law, he suggested two possible modifications.  The first is a provision that links the relevance of the data that is disclosed to the nature of the employment sought.  A second possibility would be to introduce an individual review mechanism, like that introduced in Northern Ireland in 2016, which would allow individuals to apply for administrative review of disclosure in their particular cases.

Lady Hale’s concurrence spoke to Lord Kerr’s concerns from the point of view of the scheme’s practicability, finding “bright line” rules essential in light of the large number of inquiries (four million annually in England and Wales) and the “substantial number” of positive responses (nearly 300,000).  Instead, she would “leav[e] it to the prospective employer to judge the relevance of the particular offending to the particular post.”

Proportionality

On the question of proportionality, the majority first considered whether the legislation can legitimately require disclosure using categorical rules, without any review of the facts of particular cases.  The majority said yes, reasoning that employers should generally make the final decisions about the relevance of a conviction to an individual’s suitability for certain occupations, that there is only “thin” evidence that employers cannot be trusted to take an objective view of the relevance of a conviction, that there is great value in certainty, and that a categorical scheme is easier to administer.

Nonetheless, the majority concluded that two of the categorical rules are disproportionate.  Specifically, the multiple conviction rule requires people who have more than one conviction must disclose all prior convictions on “standard” and “enhanced” records checks.  While aimed at the legitimate objective of accounting for criminal propensity, this objective is carried out in “a particularly perverse way” because the rule applies regardless of the nature of the offenses, their similarity, the number of incidents, or the passage of time.  Therefore, the rule is neither necessary nor a proportionate way of indicating a propensity to offend.  (Mrs. Gallagher and P were subject to the multiple convictions rule.)

Second, the court held that requiring disclosure to employers of youth warnings and reprimands is an “error of principle.”  The purpose of warnings and reprimands is “wholly instructive, and [their] use as an alternative to prosecution is designed to avoid any deleterious effect” in the future.  Therefore, their disclosure to a potential employers is inconsistent with that purpose. (G was required to disclose his reprimand, contrary to section 13 of the Sexual Offences Act 2003, on an enhanced criminal check.)  The court also said that it would expect the same to be true of youth cautions, but that issue was not raised by the appeals.

Lord Kerr would have held that the four individuals’ cases are “plainly disproportionate” and that “[t]hey represent the significant impact that the current policy choice has on a potentially substantial number of individuals.”

Conclusion

The bottom line is that the UK Supreme Court upheld lower court decisions declaring the multiple offense rule as well as disclosure of youth reprimands and warnings to potential employers as incompatible with the European Convention on Human Rights.  A declaration of incompatibility does not immediately alter the law.  Parliament has an opportunity to address the issue before any further judicial remedies are issued.

This case brought forth complex policy and legal considerations to evaluate a systematic framework for disclosure of criminal records to employers.  The UK Supreme Court allowed the government to rely on categorical rules to make these determinations on an automatic basis.  So long as the specific rules are proportionate to what is necessary in a democratic society, the UK government does not need to allow a person whose records are categorically disclosed to apply for an individual administrative review (although Northern Ireland does provide for this).

In the US, we have a patchwork system of state expungement and sealing statutes in which eligibility to close criminal records varies a great deal from state to state; and in which record-closing generally does not take effect until and unless the person files a successful petition in court for relief.  Often the result is that only a small percentage of eligible people actually receive relief because the required process tends to be a complex, time-consuming, and expensive proceeding before a court.  At the same time, people who are categorically ineligible for record-sealing in their state, or who have federal criminal records, generally have no avenue for individualized review of whether their records should be disclosed to prospective employers, regardless of their circumstances (other than a successful pardon application, which permits record-sealing in some states).

In recent years, the states have expressed great interest in reforming their record-closing laws, but no national model has been proposed.  For instance, as documented by CCRC, almost every state has enacted some type of record-closing law in the past five years, but they have pursued a dizzying variety of approaches.

Lord Kerr’s dissent, and the 2016 reforms in Northern Ireland, suggest a compelling vision for reform in which criminal records falling within certain categorical rules are automatically made confidential, and those that fall outside the eligible categories may be subject to individualized review as to whether they should be disclosed.  This combination of categorical relief subject to exceptions limits the administrative resources needed to decide individual cases, without using bright line exclusion to completely foreclose the possibility of relief.  Pennsylvania’s Clean Slate Act of 2018 is an exciting first step in this direction: it provides for automatic record-sealing of misdemeanor and non-conviction records for people that qualify under certain eligibility rules, alongside a somewhat broader set of eligibility rules that allow individual petitions for sealing.  This law, whose effectiveness is phased in through mid-2020, will provide for automated sealing for a range of minor criminal records, with eligibility rules that are similar to eligibility rules for court-ordered sealing by petition, though somewhat more limited.  (The law is explained in more detail in our Pennsylvania Restoration of Rights Profile.)