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.

THE CASE OF M.M. v. THE UNITED KINGDOM [2012] ECTHR  (APPLICATION NO.24029/07, FINAL JUDGMENT 29/04/2013).

In 2000, M.M. was arrested by Northern Ireland police for child abduction. M.M. apparently took her infant grandson away from the child’s mother (estranged from M.M.’s son) to prevent her taking the child to Australia. Rather than face formal charges, M.M. agreed to accept a “police caution,” a formal reprimand from a police commander administered at the police station. (There is no U.S. equivalent.)  According to the applicable criminal records law at that time, the caution is recorded on and remains in the police database (Police National Computer) for five years and is then regarded as “spent” (expunged) and no longer available to the public. 

In September, 2006, a health care company offered M.M. a child care job, subject to a satisfactory background check. In response to the company’s query about prior convictions and cautions, M.M. voluntarily disclosed the prior caution, which was verified by the Criminal Records Office of Northern Ireland. Although the caution was now more than five years old, the Criminal Records Office explained that, under a new policy (triggered by the infamous Soham murders), police permanently retain and disclose cautions related to child victims.  Consequently, the company withdrew the job offer.  M.M. challenged the U.K.’s disclosure policy in the European Court of Human Rights.

(In 2002, the U.K. had been rocked by the murder of two school girls in Soham by the school’s custodian. The police had information in their files pertaining to his previous  sex offending, but had not alerted the school because there had not been a conviction. The subsequent Bichard Inquiry recommended greater police sharing of information about allegations of sex offending and child abuse. M.M. was a “victim” of that new policy.)

Pursuant to the post-Soham disclosure policies that applied to any employment requiring a background check, caution data contained in central records must always be retained in police files and disclosed without regard to the provisions of the Rehabilitation of Offenders Act.  (The ROA would ordinarily require deletion of “spent” caution information after a certain period of time.)  Prior to 2012, these policies made no distinction based on the seriousness or the circumstances of the offense, the time which has elapsed since the offense was committed, and whether the caution or conviction is spent. In short, there appeared to be no scope for the exercise of any discretion in the disclosure exercise.

The ECtHR found that the U.K’s. policy violated the European Convention on Human Rights’ Article 8, which guarantees “respect for private life”, i.e. a  right to privacy that protects personal data. The right to private life is not limited to personal secrets or intimacy, but extends to “the right to establish and develop relationships with other persons.” Disclosing convictions diminishes the individual’s liberty to develop social and employment relationships.  This is especially pernicious when the information refers to a distant event that everyone other than the record-subject is likely to have forgotten about. Moreover, European legislation considers convictions and police cautions as personal protected data covered by data protection laws regarding information collection, storage and disclosure.

The U.K. sought to defend its criminal records retention and disclosure policy by invoking Article 8, section 2, which provides that:

There shall be no interference by a public authority with the exercise of this right [to privacy] 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 freedom of others’.

The ECtHR held that such a heavy-handed (over-inclusive) record retention and disclosure policy could not be justified by the need to prevent sexual and other abuse of children. According to the ECtHR, Article 8 requires a more nuanced policy on disclosing information known to the police. Because police cautions are not public information, the disclosure policy must take into account the facts of the particular case, including the nature of the offence, the case’s disposition, the length of time since the offence took place and its relevance to the employment sought.  The Court highlighted 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 noted the absence of any mechanism for independent review of a decision to retain or disclose data.

Finally, the Court noted with approval a 1987 Council of Europe Recommendation regulating communication of police data to third parties. According to the Recommendation, disclosure is permissible only when necessary to prevent a serious and imminent danger. The UK’s policy was not consistent with that standard, and so was the court ruled it invalid on its face.

The U.K. disclosure rules invalidated in M.M. have now been substantially revised.  In 2012, the U.K. enacted the Protection of Freedoms Act and established the Disclosure and Barring Service to administer its provisions relevant to authorized background check requests.  New “filtering rules” adopted by the DBS provide that some convictions and cautions will not be disclosed if: a) 11 years have elapsed since the date of conviction or six years in the case of a caution; b) it is the person’s only offense; and c) the offense did not result in a custodial sentence. Even then, it will only be removed if it the underlying offense is not one of  the more than 1000 offenses (notably offenses involving child victims) that will always be disclosed.  Under these new “filtering” rules, M.M.’s caution would still be disclosed. Time will tell whether the EctHR will approve this limited policy revision.

The U.S. does not have the formal cautioning procedure that exists in the U.K. However, diversion from prosecution is common, usually for minor offenses. Whether the successful completion of a diversion program will lead to expungement of the arrest and charges depends upon each state’s laws. A number of states require that arrests that do not result in a conviction be automatically deleted from the rap sheet and that corresponding court records be sealed. Most states provide for such deletion only upon court order, and make exceptions for conduct involving sex offenses or crimes of violence. However, even in the few states that require deletion automatically, the required deletion often does not occur because of failure to communicate the disposition information to the state records repository.

Moreover, during the time before charges are dismissed, the arrest and charge information can be obtained and copies from court records and, by authorized users, from rap sheets. Thus, arrest information is often available, even if the record-subject is not convicted. More importantly, with respect to comparison with the M.M. v. U.K. decision, there is no U.S. constitutional requirement that police or courts purge or refrain from disclosing arrest, diversion or conviction information.  See Paul v. Davis, 424 U.S. 693 (1976). Indeed, a federal appears court has recently held that dissemination of arrest information is not libelous even if it has been automatically “erased” under state law.  See Martin v. Hearst Corporation, Docket No. 13-3315 (2d Cir., January 28, 2014).