The government will have to go back to the drawing board over its criminal records disclosure scheme after losing a Court of Appeal challenge in relation to rules for multiple convictions.
Ruling in P v Secretary of State for the Home Department and Secretary of State for Justice, Sir Brian Leveson said the scheme - which requires the disclosure of all spent convictions where an individual has more than one spent conviction - is ‘not in accordance with the law’.
The government's appeal followed a challenge originally brought by P, who in 1999 committed two offences of theft by shoplifting while suffering from undiagnosed schizophrenia. She was cautioned for the first offence and prosecuted for the second.
The judgment states that, due to her condition and homelessness at the time, P failed to appear at court, and was subsequently convicted of the second theft offence and an offence under the Bail Act 1976.
She was conditionally discharged for both offences. However, her disclosable convictions 'militate against her getting paid employment as a teaching assistant, and carry with them a requirement to explain her past mental health history', the judgment states.
P successfully challenged the scheme in 2014, insofar as it required disclosure of all spent convictions where an individual had more than one such conviction.
Leveson acknowledged that where a pattern of offending behaviour is demonstrated, it is 'entirely legitimate to conclude that such information should be available to potential employers'.
However, 'the difficulty with the bright line [is] that it is not a necessary inference that two convictions do represent a pattern of offending behaviour: indeed, on very many occasions they will not', he said.
In P's case, the convictions were for theft and failing to answer bail. 'Although connected because of P's mental health issues, they do not reveal anything like a pattern', he added.
'Thus, in this case, whatever might be said in different circumstances, the justification simply collapses and the bright line rule has produced an answer which is simply disproportionate (however wide the margin of appreciation) to the interference in P's private life, because it does not generate interests of public safety so as to make it arguably necessary in a democratic society.'
Debaleena Dasgupta, legal officer at human rights group Liberty and solicitor for P, said the ruling 'gives hope to huge numbers of people whose ambitions have been dashed because of minor mistakes they made in the past'.
She added: ’The government must urgently fix this broken system that needlessly prevents people from rebuilding their lives and contributing to society. We look forward to seeing a fairer scheme which has the capacity to consider individual circumstances where appropriate.’
P's case was one of four linked appeals.
Leveson said it was not for the court to 'fashion a solution and, ultimately, it is a matter for the legislature to ascertain whether as a matter of practice rather than legal theory, what system is appropriate'.
However he added that 'without some mechanism to ensure that disclosure is proportionate and linked to the protection of the public (therefore being necessary in a democratic society), it is difficult to see how challenges of the type raised in these cases can be avoided'.
He continued: 'If left to the courts as the scheme is presently devised, in my judgment, it will generate many challenges which will require resolution on a case by case basis: such an approach cannot possibly be in the public interest.'
Lord Justice Beatson and Lady Justice Thirlwall agreed.
Christopher Stacey, co-director of Unlock, which helps people with convictions and worked closely with Liberty on the case, said the charity is contacted by thousands of people every year 'because they are being unnecessarily anchored to their past as a result of a criminal record disclosure system and DBS filtering process which is blunt, restrictive and disproportionate'.
Stacey suggested a fairer and more flexible system would be one with expanded automatic filtering rules and a discretionary filtering process with a review mechanism so that individual circumstances can be considered.