We are pleased to republish a book review by CCRC Executive Director Margaret Love of a collection of essays about how European countries manage access to criminal records. The philosophy and values underpinning the EU approach revealed in these essays are so different from our own that their product will make record reformers in the U.S. green with envy.
For example, the review points out that one of the foundational premises of European systems of criminal records is that giving the public broad access would be “contrary to ‘fundamental’ considerations of privacy and human dignity protected by the European Convention on Human Rights, which implicitly limit loss of liberty and public stigmatization through disclosure of a past crime.” Accordingly, employers and other non-law enforcement entities can have access to criminal records only if their subject explicitly authorizes it, and even then a request will be permitted only in specified circumstances where a criminal record is deemed relevant.
Individuals asked to produce their record may decide that the uncertainty of benefit is not worth the risk of exposure. In this fashion, individuals may take responsibility for achieving their own social redemption even if they lose an economic opportunity.
Only a “dystopian account” of the Australian system of accessing criminal records will seem familiar to U.S. practitioners.
Here is the review by CCRC’s Margaret Love, which originally appeared in Criminal Law and Criminal Justice Books:
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.
When Lorraine Martin and her two sons were arrested in 2010 at their home in Greenwich, Connecticut on drug charges, it was widely reported in the local media. A year later, when the state decided to drop the charges against her, the record was automatically “erased” and Martin was “deemed to have never been arrested” under Connecticut’s Criminal Records Erasure Statute. But the contemporaneous news accounts remained available on line, and the publishers refused to remove them.
Martin sued in federal court on various tort theories, including libel and invasion of privacy, relying on the “deemer” provision of the Erasure Statute. The district court ruled that the publishers could not be held liable because the accounts were true when published, and the Erasure Statute “does not purport to change history.” The Second Circuit affirmed. See Martin v. Hearst Newspapers, Docket No. 13-3315 (2d Cir., Jan. 28, 2015).