Summary of Judgment - In re JR 123
| Jurisdiction | Northern Ireland |
| Neutral Citation | Summary of Judgment - In re JR 123 |
| Court | Court of Judicature (NI) |
| Date | 01 November 2021 |
Judicial Communications Office
1
1 November 2021
COURT DECLARES REHABILITION OF OFFENDERS
LEGISLATION INCOMPATIBLE WITH ECHR
Summary of Judgment
Mr Justice Colton, sitting in the High Court in Belfast today, made a declaration to the effect that
Article 6(1) of the Rehabilitation of Offenders (NI) Order 1978 is incompatible with Article 8 of the
ECHR by reason of failing to provide a mechanism by which certain categories of offenders can
apply to have their conviction considered to be spent.
The applicant was convicted in 1980 of offences relating to a petrol bombing of a house and burglary
and theft. He received a concurrent sentence of five years imprisonment. The attack was apparently
motivated by a desire for revenge on the resident of the house for having given information to the
police about an earlier burglary. The applicant denied any involvement with the gang or the
previous burglary but said he was an associate of one member of the gang and felt pressurised to
participate. He has had no involvement with the criminal justice system and no further convictions
since being released from prison but has experienced difficulties and negative consequences of his
convictions over the years and finds the process of repeatedly having to disclose them to be
oppressive and shaming.
The applicant sought to challenge the legality of Article 6(1) of the Rehabilitation of Offenders (NI)
Order 1978 (“the 1978 Order”) which prevents his previous convictions from ever becoming “spent”.
As his sentence was greater than thirty months, his conviction will never become spent and he will
never be treated in law as a person who has not committed a criminal offence. The applicant argued
that the provision is incompatible with his right to private and family life under Article 8 of the
European Convention on Human Rights (“ECHR”). He sought to have the legislation struck down
or a declaration of incompatibility.
The Applicant’s Article 8 Rights and Proportionality
The court held that the failure to provide for the applicant’s conviction to become spent engaged his
rights under Article 8. It also concluded that there has been an interference with his Article 8 rights
and accepted his evidence that the interference has had a significant effect on him.
In light of these findings the court had to consider whether any such interference was in accordance
with law, pursued a legitimate aim and is proportionate. The court said there was no real issue in
relation to the first two limbs of the test and the real issue was therefore one of
proportionality/justification. The applicant’s primary submission was that the absence of a
mechanism under the legislation by which he could apply to have his conviction considered to be
spent, irrespective of the passage of time and his personal circumstances, was fatal to Department of
Justice’s (“the respondent”) submission that the legislation is compatible. The respondent’s primary
submission was that the imposition of periods during which sentences will not be considered spent
and the designation of certain offences in respect of which convictions will never be considered
spent is a permissible and lawful approach which does not breach Article 8. It was argued that the
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