Wednesday 30 January 2019

Disclosure and Barring Scheme ~ Supreme Court 30 January

Imagine that back in 1999 you were sentenced to a conditional discharge for the theft of a sandwich from a local shop.  At the time you were 12 years old.  Now, at age 32, you apply for a job at a school.  Your have led a law-abiding life since that minor offence but you do not get the job because your enhanced criminal records check reveals the 20 year-old conviction even though it is a spent conviction under the Rehabilitation of Offenders Act 1974.  In effect you are marked for life because of this childhood misdeed.

That was the type of situation
in which various individuals found themselves and they challenged the scheme on the basis of Article 8 ECHR.  The cases came together at Supreme Court level when the authorities brought appeals against the decisions of the courts below.

The Supreme Court has considered four appeals by the Department of Justice Northern Ireland (one appeal) and the Home Office (three appeals) concerning the disclosure to potential employers, by the Disclosure and Barring Service (DBS), of  criminal records.  The appellants were Lorraine Gallagher (on appeal from Northern Ireland) and P, G and W on appeal from the Court of Appeal (Civil Division).

The disclosure of their criminal records to potential employers has made, or may in future make, it more difficult for them to obtain employment.  In each case, the relevant convictions and cautions were “spent” under the legislation designed for the rehabilitation of ex-offenders. Nonetheless, criminal records had to be disclosed if they applied for employment involving contact with children or vulnerable adults.

The respondents challenged the statutory disclosure schemes as being incompatible with Article 8 of the European Convention on Human Rights 1950 (“ECHR”) protecting the right to respect for private and family life.  That raised two separate questions, namely whether any interference with Article 8 ECHR was:  (1) “in accordance with the law” (“the legality test”) and (2) “necessary in a democratic society”(“the proportionality test”).

The Home Office appeals were dismissed except in W's case.  The majority of the Court (Lord Sumption, Lord Carnwath, Lord Hughes and Lady Hale) reached that result based on a partial breach of the proportionality test.  The links below contain access to the judgments.

Lord Sumption handed down the court's judgment - view here.

See also the UKSC Blog for 30 January where the judgment is explained

The court also made a declaration that a declaration that article 2A(3)(c) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order (SI 1975/1023) (“1975 Order”) was  incompatible with Article 8 ECHR. 


In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland)

R (on the application of P, G and W) (Respondents) v Secretary of State for the Home Department and another (Appellants)

R (on the application of P) (Appellant) v Secretary of State for the Home Department and others (Respondents)

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