Following the judgment by the Supreme Court on the current criminal records disclosure regime, we thought it would be useful to highlight the main points of the decision and to set out what is likely to happen next.
What does the judgment say?
The Supreme Court ruled that two aspects of the filtering regime – as it applies to multiple convictions and childhood cautions – are disproportionate and in breach of Article 8 of the European Convention on Human Rights
The judgment was a majority decision, with Lords Sumption, Carnwath and Hughes and Lady Hale in agreement. Lord Kerr gave a dissenting opinion.
The court ruled that:
- A category based system, where some offences are filtered and others not, is in accordance with the law, although the court recognised that this creates difficulties for some.
- Despite this, there are two elements that are disproportionate:
- The ‘multiple conviction’ rule
- The approach to reprimands/warnings/youth cautions of children.
How does the filtering system work at the moment?
The current filtering rules have four elements to them:
- The number – Only single convictions can be filtered (multiple cautions can be filtered).
- The seriousness – The single conviction cannot have resulted in a prison (or suspended) sentence.
- The type of offence – There is a long list of offences – including drug supply, violent or sexual offences – which cannot be filtered.
- The length of time – If cautions or convictions have got through the 3 aspects above, there is a set period of time, depending on whether it was a caution or conviction, after which it is filtered (i.e.removed) from a standard or enhanced check.
Our flowchart sets out the way the filtering process currently works.
The multiple conviction rule means that anyone with more than one conviction would have to disclose all convictions indefinitely, no matter what the offence. The court found that this rule is not necessary or proportionate since it applies ‘irrespective of the nature of the offences, of their similarity, of the number of occasions involved or of the intervals of time separating them’.
Warnings and reprimands
Warnings and reprimands (given to children) were never intended as punishment – their aim was always one of rehabilitation. The Supreme Court found that ongoing disclosure of warnings and reprimands is an ‘error of principle’. This reasoning should also apply to youth cautions (which replaced warnings and reprimands).
Case of W and the list of offences
The case of W involved a person now in their 50’s with an Actual Bodily Harm (ABH) conviction when they were 16 years old. The court broadly agreed that ABH should continue to be disclosed as ‘it may be’ a serious offence. This will be disappointing to those with a conviction for low level ABH and other offences that cannot be filtered. It’s worth noting that there has been criticism from other places on the current operation of this list of offences – such as by the Law Commission and the Justice Committee – and we will continue to highlight cases where the category approach creates injustice.
None of the cases before the court involved prison (or suspended) sentences so the judgment does not comment on that aspect of the filtering system.
What happens next? Does this mean my caution/conviction no longer needs to be disclosed?
The court ruled that the criminal records disclosure scheme as it applies to multiple convictions and childhood warnings/reprimands was disproportionate. The government will now need to consider the judgment and work out how to respond. You can see in our press release what we’re calling for the government to do next. There is no immediate change but, as these rules have been found disproportionate and a breach of human rights, we want to see the government act swiftly to change them.
Thousands of children are given cautions every year. Thousands of adults have convictions for less serious offences, often committed many years ago. When the government acts to comply with this ruling, those people will be able to move on, find employment or training without having to reveal a past that is no longer relevant. We’ll continue to publish updates as part of our policy work on the filtering regime.
What can you do to help?
You can contact your MP to ask them to take an active interest in the government’s response to this judgment.
You can continue to tell us how disclosing warnings/reprimands or multiple convictions has affected your employment prospects and your ability to move on positively with your life.
We’ll continue to update the filtering policy page on our main website.