In July 2002 an 11-year old boy received a warning under the Crime and Disorder Act 1998 from Greater Manchester Police. As might be expected given the punishment, it was a warning for something, which in the great scheme of things was fairly trivial: the theft of two bicycles. The warning was given and he never came to the attention of the police again.
Nine years on, the boy is now a 20-year old student, keen to apply for a sports studies course. To be accepted for the course he is required to obtain and disclose a copy of his Enhanced Criminal Record Certificate (ECRCs). ECRCs were introduced in the wake of the Soham murders in an attempt to protect children and vulnerable adults from so-called ‘stranger danger’. However by the Police Act 1997, section 113B, they must contain ALL convictions, cautions and warnings. And so a warning for bike theft, as an 11-year old, shows up and he is left with the prospect of not being able to start his course.
On the 19th February this year, the High Court (Kenneth Parker J) gave judgment in R (T) v (1) Chief Constable of Greater Manchester Police, (2) Secretary of State for the Home Department (Secretary of State for Justice an interested party)  EWHC 147 (Admin). The case was brought by that 11-year old boy now a student in his 20s. His argument, that the inflexible requirement under the 1997 Act for all convictions, cautions and warnings to be disclosed in ECRCs was incompatible with Article 8 of the ECHR, failed – as did a challenge to the lawfulness of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 which removes, in certain circumstances, the protections concerning spent convictions.
An error of judgment
The judge was clearly sympathetic to arguments that there might be a breach of article 8 – on the grounds that such disclosure may be disproportionate. He opined however, that there does not appear to be any international convention that would require a state to exempt people from having to reveal information about crimes committed when they were children, and the UK’s scheme for rehabilitation under the Rehabilitation of Offenders Act did not seem to lag behind similar arrangements in other convention states. As such, the court was constrained by binding authority to conclude that the challenged provisions of the 1997 Police Act were compatible with Article 8 ECHR. The judge accepted that the issue was one of general importance, which fully deserved to be considered by a higher court, and therefore granted leave to appeal which should hopefully be heard sometime later in the year.
It is difficult to imagine or fathom a more ridiculous, draconian or callous system, one which stigmatises forever a child for an error of judgement, bravado or moment of stupidity. One isolated moment – in a lifetime – one moment that could prevent someone from ever working in a specific field, obtaining insurance or even from volunteering.
For those who think it is only a minority that are likely to be affected then consider this – by 2009 the Labour government had created more than 3,500 crimes since it gained power in 1997, more than 1,200 of them through full-scale primary parliamentary legislation. Official figures suggest that already 30% or more of all working age men have a criminal record of one sort or another. If and when a CRB check is to be carried out, every warning and reprimand is revealed as well as every offence, that percentage will increase significantly and very rapidly.
These issues are currently being reviewed by the government and seem set to be the subject of legislative consideration. On 22 October 2010, the Secretary of State for the Home Department (SSHD) established the Criminal Records Review. The terms of reference were:
‘The Criminal Records Review will examine whether the criminal records regime strikes the right balance between respecting civil liberties and protecting the public. It is expected to make proposals to scale back the use of systems involving criminal records to commonsense levels.’
A review has been conducted by Sunita Mason, the Independent Adviser for Criminality Information Management. Her report on the first phase of the review was published on 11 February 2011. She said:
‘There is a reasoned argument that, in many cases, the disclosure of conviction information that is both minor and disproportionate places an unnecessary burden on the lives of individuals. This is particularly so, where the conviction became spent many years earlier and the individual poses no significant public protection risk to children or vulnerable adults (for example, a shoplifting offence from 27 years ago).’
Mason added that ‘she was keen to ensure that the Government implements an appropriate form of filtering in the CRB process that removes conviction information that is undeniably minor and which cannot be classed as anything other than old.’
One can only hope that once this consultation has finally concluded, that the government will indeed see common sense and that a proportionate and compassionate response to childhood misdemeanors will prevail – ensuring that young people who want to do something positive with their lives are not blighted by something of that occurred years ago when they were simply a child and which is of no real consequence now they are adults.
Matt Evans is the Director of the AIRE Centre, a specialist charity whose mission is to promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Previously he was the Managing Solicitor at the Prisoners Advice Service for 6 years and worked at a number of leading legal aid firms including TV Edwards, Hickman and Rose and Hodge Jones and Allen.