Department of Justice and JR123
| Jurisdiction | Northern Ireland |
| Judge | McCloskey LJ |
| Judgment Date | 03 May 2023 |
| Neutral Citation | [2023] NICA 30 |
| Court | Court of Appeal (Northern Ireland) |
Neutral Citation No: [2023] NICA 30
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: McC12155
ICOS Nos:
Delivered: 03/05/2023
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION (JUDICIAL REVIEW)
Between:
DEPARTMENT FOR JUSTICE
Appellant:
-and-
JR123
Respondent:
___________
Before: McCloskey LJ, Horner LJ and Scoffield J
___________
Mr Tony McGleenan KC and Mr Philip McAteer, of counsel, instructed by the
Departmental Solicitor’s Office) for the Appellant
Mr Hugh Southey KC and Mr Steven McQuitty, of counsel, instructed by the NI Human
Rights Commission) for the Respondent
___________
McCLOSKEY LJ (delivering the judgment of the court)
Anonymity
The respondent having been granted anonymity and being described by the cipher
“JR123”, there shall be no publication of anything which might result in their
identification.
INDEX
Subject Paragraph No
Introduction 1
Factual Matrix 2-4
The Impugned Statutory Provision 5-7
The Story of the Legislation 8-18
Policy Considerations 19-22
At First Instance 23-27
The Parties’ Competing Contentions 28-29
The Proportionality Principles 30-44
The respondent’s Case 45-54
Analysis 55-66
The Role of This Appellate Court 67-70
Our First Conclusion 71-73
The Declaration of Incompatibility 74-82
Our Second Conclusion 83-87
The Cross – Appeal 88-99
Disposal 100
Introduction
[1] By the first of his two orders the trial judge, Colton J, declared that Article 6(1)
of the Rehabilitation of Offenders (NI) Order 1978 is incompatible with article 8
ECHR “by reason of a failure to provide a mechanism by which the [respondent] can
apply to have his conviction considered to be spent, irrespective of the passage of
time and his personal circumstances.” This order was made against the Department
for Justice (“DOJ”), which appeals to this court. By the second of his orders the
judge dismissed the respondent’s application for an award of damages, in the
following terms:
“The court is not satisfied that an award of damages is
necessary to afford just satisfaction to the [respondent].
That has already been achieved by the declaration granted
by the court …. [which] adequately deals with the
infringement of the [respondent’s] human rights in the
factual context of this case.”
The respondent cross appeals against this order.
Factual Matrix
[2] The following material facts are either uncontested or incontestable. The
respondent, when aged 21 years, was convicted of arson, and possessing a petrol
bomb in suspicious circumstances, arising out of an attack by petrol bomb on a
private residence. He was sentenced to concurrent terms of imprisonment of five
years and four years respectively. At the same time he admitted to having
committed the offences of burglary and theft on a previous date, generating two
further concurrent sentences of 12 months’ imprisonment. He was released from
prison in 1982, some 40 years ago and is now aged 64.
[3] The effect of the operative statutory scheme (infra) is that his two headline
convictions are incapable of becoming “spent.” He asserts that this has had
prejudicial consequences for him. In particular, he has encountered difficulty in
securing employment from time to time. He has also experienced difficulties in
securing insurance for a small business which he has established and for other
purposes.
[4] The respondent contends that he is a fully rehabilitated citizen. He has been in
a stable relationship for some 17 years. He attends his local church and engages in
charitable activities. He is a skilled tradesman, having obtained multiple
qualifications following his release from prison. He has also secured awards for two
trading inventions. He professes shame and regret for his criminal conduct.
The Impugned Statutory Provision
[5] The Rehabilitation of Offenders (NI) Order 1978 (the “1978 Order”)
establishes a scheme whereby certain types of criminal convictions can become
“spent.” Convictions of this kind do not have to be disclosed by the offender (to, for
example, a prospective employer) and cannot be disclosed by any other agency (for
example, and in particular, Access NI), subject to certain exceptions.
[6] The concept of “rehabilitated person” lies at the heart of the 1978 Order. The
impact of securing this status is considerable, as Article 5(1) makes clear:
“… a person who has become a rehabilitated person for
the purposes of this Order in respect of a conviction shall
be treated for all purposes in law as a person who has not
committed or been charged with or prosecuted for or
convicted of or sentenced for the offence or offences
which were the subject of that conviction ….”
However, as regards sentences of imprisonment exceeding 30 months, the status of
rehabilitated person cannot be achieved by the offender. This is so by virtue of
Article 6(1):
“The sentences excluded from rehabilitation under this
Order are –
…
(b) A sentence of imprisonment or corrective training
for a term exceeding 30 months.”
[7] In summary, the effect of the statutory scheme is that convicted offenders
must disclose their convictions either for specified periods, of varying duration, or
for the remainder of their lives. This duty is, with limited exceptions, extinguished
when the appropriate period expires. It continues to apply to specified types of
employment, such as working with children or vulnerable adults, working in private
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