In Gallagher and Others for Judicial Review
 UKSC 3
On appeals from:  NICA 42 and  EWCA Civ 321
Lady Hale, President
Appellant (Department of Justice for NI)
Peter GJ Coll QC
(Instructed by Departmental Solicitors Office)
Appellant (SSHD and anr)
Sir James Eadie QC
Kate Gallafent QC
(Instructed by The Government Legal Department)
Respondent (Lorraine Gallagher)
Martin Wolfe QC
Christopher Coyle BL
(Instructed by McElhinney, McDaid & Co)
Hugh Southey QC
(Instructed by Liberty)
Tim Owen QC
(Instructed by Just for Kids Law)
(Instructed by Minton Morrill (Leeds))
Intervener (Unlock) (written submissions only)
Caoilfhionn Gallagher QC
(Instructed by Bindmans LLP)
Intervener (Community Law Advice Network) (written submissions only)
Morag Ross QC
(Instructed by Clan Childlaw)
Heard on 19, 20 and 21 June 2018
(with whom Lord Carnwath and Lord Hughes agree)
The four respondents to these appeals have all been convicted or received cautions or reprimands in respect of comparatively minor offending. The disclosure of their criminal records to potential employers has made it more difficult for them to obtain jobs, or may make it more difficult in future. In each case, the relevant convictions and cautions were “spent” under the legislation designed to enable ex-offenders to put their past behind them. They had to be disclosed only if the respondents applied for employment involving contact with children or vulnerable adults. In all four of these appeals, the respondents challenge the statutory rules under which disclosure of their records was required as being incompatible with the European Human Rights Convention.
Such cases raise problems of great difficulty and sensitivity. They turn on two competing public interests. One is the rehabilitation of ex-offenders. The other is the protection of the public against people whose past record suggests that there may be unacceptable risks in appointing them to certain sensitive occupations. The importance of both public interests needs no emphasis. The ability of ex-offenders to obtain employment is often an essential condition of their successful reintegration into law-abiding society at what, especially in the case of young offenders, may be a critical period of their lives. On the other hand, in some employment sectors a more cautious approach is indispensable. The Bichard Inquiry (2004) (HC 653) into child protection procedures and vetting practices was a stark reminder of the importance of ensuring that the rehabilitation of offenders does not undermine proper standards of public protection when those with criminal records apply for jobs involving contact with children. The Inquiry had been set up after two young girls had been murdered by a caretaker employed at their school, about whom there had been substantial intelligence in police files, not retained or disclosed to the school, suggesting a pattern of sexual interference with women and young girls.
P received a caution on 26 July 1999 for the theft of a sandwich from a shop. Three months later, on 1 November 1999, she was convicted at Oxford Magistrates' Court of the theft of a book worth 99p and of failing to surrender to the bail granted to her after her arrest for that offence. She received a conditional discharge for both offences. At the time of the offences she was 28 years old, homeless and suffering from undiagnosed schizophrenia which is now under control. She has committed no further offences. P is qualified to work as a teaching assistant but has not been able to find employment. She believes that this is because she has been obliged to disclose her convictions on each job application.
W was convicted by Dewsbury Magistrates' Court on 26 November 1982 of assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861. At the time of the offence he was 16 years old. The assault had occurred in the course of a fight between a number of boys on their way home from school. He received a conditional discharge, and has not offended since. In 2013, when he was 47, he began a course to obtain a certificate in teaching English to adults. His conviction has not been disclosed, but he believes that he would need to disclose it and obtain a criminal record certificate if he were to apply for a job as a teacher, and that this will prejudice his chances of obtaining employment.
On 1 August 2006, when he was 13 years old, G was arrested for sexually assaulting two younger boys, contrary to section 13 of the Sexual Offences Act 2003. The offences involved sexual touching and attempted anal intercourse. These were potentially serious offences, but the mitigation was exceptional. The police record indicates that the sexual activity was consensual and “seems to have been in the form of ‘dares’ and is believed to have been a case of sexual curiosity and experimentation of the part of all three boys.” The Crown Prosecution Service decided that it was not in the public interest to prosecute, but suggested a reprimand under section 65 of the Crime and Disorder Act 1998. On 5 September 2006 G received two police reprimands, one in respect of each of the younger boys. He has not offended since. In 2011, when he was working as a library assistant in a local college, he was required to apply for an enhanced criminal record check because his work involved contact with children. After the application was made, he was told by the police that they proposed to disclose the reprimand, together with an account of the mitigating circumstances. As a result, G withdrew the application and lost his job. He has since felt unable to apply for any job for which a standard or enhanced criminal record check would be required.
Lorraine Gallagher was convicted on 24 July 1996 at Londonderry Magistrates' Court of one count of driving without wearing a seatbelt, for which she was fined £10, and three counts of carrying a child under 14 years old without a seatbelt, for which she was fined £25 on each count. All four counts related to the same occasion. On 17 June 1998, she was convicted at the same court on two counts of carrying a child under 14 years old in a car without a seatbelt. She was fined £40 on each count. Again, both counts related to the same occasion. She had been carrying two of her children in the back of her car. Their seatbelts had been attached, but not properly because, unbeknown to her (she says), they had placed the shoulder straps under their arms. Ms Gallagher has no other convictions. In 2013, having qualified as a social carer, she was admitted to the Northern Ireland Social Care Council Register of Social Care Workers. In 2014, she applied for a permanent position at a day centre for adults with learning difficulties and received a conditional offer of employment. In response to a request to disclose whether she had been convicted at any time of a criminal offence she disclosed “Yes” and “carrying child without seatbelt in 1996”, but she did not disclose the conviction in relation to herself. She did not disclose the 1998 convictions at all. When the enhanced criminal record certificate disclosed all the convictions, the job offer was withdrawn on the ground that her failure to disclose them called her honesty and integrity into question.
The disclosure of criminal convictions, cautions and reprimands is governed by two related statutory schemes. Disclosure by the ex-offender himself is governed by the Rehabilitation of Offenders Act 1974 in England and Wales and the corresponding provisions of the Rehabilitation of Offenders (Northern Ireland) Order 1978 ( SI 1978/1908) in Northern Ireland. There is no material difference between the Act and the Northern Ireland Order. I shall therefore refer in this judgment to the provisions of the 1974 Act. Section 1 of that Act provides that, subject to conditions none of which is material, where a person has been convicted of an offence which is not excluded from rehabilitation, that person shall be treated as rehabilitated after the expiry of the rehabilitation period and the conviction shall be treated as spent. Sections 8A and 8AA make corresponding provision for cautions. The rehabilitation period is defined by section 5, and varies according to the sentence of the court and the age of the offender. Section 4 determines the effect of rehabilitation. By section 4(1), the ex-offender is to be treated for all legal purposes as a person who has not committed or been charged or prosecuted or convicted of the offence. For present purposes, the critical provisions of the Act are sections 4(2) and (3). Their effect is that where a question is put to an ex-offender about his previous convictions, offences, conduct or circumstances (other than in judicial proceedings), the question shall not be treated as relating to spent convictions and may be answered accordingly. In other words, the ex-offender is under no obligation to disclose it, and indeed may lawfully deny it. He is not to be subjected to any liability or prejudice in consequence. Section 4(4) provides that the Secretary of State may by order provide for exceptions to sections 4(2) and (3). The Secretary of State exercised this power for England and Wales by the Rehabilitation of Offenders Act 1974 (Exceptions)...
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