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10 Oct 2018

Spent Convictions: The Foibles of the Rehabilitation of Offenders Act within the Context of Internet Permanence

The shockwaves of a criminal conviction can be felt far beyond the conclusion of any sentence; the stigma of criminality often frustrates social interaction and employment long into the future. The prospect of being labelled a ‘criminal’ by the State can frequently be as great a source of consternation as the punishment itself.

It is unsurprising that the press takes a particular interest in the reporting of criminal proceedings; whether this be at the national or local level.  Whilst the reporting of crime is not a new phenomenon, the permanence of information in the digital world has resulted in an enduring and more easily discoverable record of an individual’s past criminality, making it increasingly difficult to emerge from the shadow of the past.  No longer is it the case that today’s news is tomorrow’s fish and chip paper.

Perhaps more worryingly for a convicted person is the loss of the mainstream media’s monopoly on the dissemination of information.  Unregulated individuals now have ready access to a global audience at the press of a button through the use of social media. As a result, the footprint created by an individual’s conviction is likely to be much greater than it was in the past.

In light of these difficulties, the law has sought to mitigate the ongoing impact of a criminal conviction in line with the long-standing public policy principle of balancing protection of the public against the rehabilitation of offenders.  The Rehabilitation of Offenders Act 1974 (as amended) (“ROA”) is the primary instrument in providing a degree of protection to a convicted person, with a view to enabling full reintegration into society.  The ROA identifies rehabilitation periods, after which the conviction is deemed spent and the individual is regarded as a rehabilitated person.  Section 4 of the ROA provides that, subject to exceptions, a rehabilitated person shall be treated 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”.

The relevant rehabilitation periods are set out in Section 5 of the ROA, which provides for rehabilitation periods of differing lengths contingent upon the disposal, from cautions and non-custodial orders through to custodial sentences not exceeding four years in length.  Those individuals receiving custodial sentences in excess of four years will never be regarded as rehabilitated persons and their convictions will at no time become spent under current legislation.

Throughout the rehabilitation period, an individual is under a legal obligation to disclose to an employer, if asked, details of any criminal convictions.  Upon a conviction being deemed spent, there remains no such obligation to do so.  Even if a conviction is deemed spent, it may still appear on checks performed by employers with the Disclosure and Barring Service (“DBS”), The DBS filtering rules operate so that an adult conviction will not be removed from a DBS record for 11 years post-conviction (and only then when it is the convicted person’s only offence for which a non-custodial sentence was imposed and the offence was not a listed offence).  An adult caution will be removed from a DBS record six years after being given. Those falling outside of the scope of the filtering rules will have their conviction disclosed on a DBS check indefinitely, irrespective of whether or not the conviction is deemed spent.

Section 4 ROA provides that publication of information pertaining to a spent conviction may give rise to a civil claim in defamation, subject to defences under the Defamation Act 2013 as qualified by Section 8(5)-(6) of the ROA. These qualifications are not applicable where, pursuant to Section 8(7) of the ROA, the details of an individual’s commission, charge, prosecution and conviction of a criminal offence is for the purposes of:

“any report of judicial proceedings contained in any bona fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, and […] any report or account of judicial proceedings published for bona fide educational, scientific or professional purposes, or given in the course of any lecture, class or discussion given or held for any of those purposes.”

Whilst the ROA provides a degree of protection by way of enabling a civil claim in defamation, the qualified defences weaken this protection. This is especially notable in the absence of malice, whereby if the statement is true, which will often be the case in such circumstances, the civil courts will provide no redress. Some degree of comfort may nonetheless be garnered from section 8 of the ROA in that it ensures against a campaign of ongoing publication with a view to maliciously impeding the lives of rehabilitated persons; be that in the press, on social media platforms or otherwise.

Prior to a conviction being deemed spent, a convicted person has no reasonable expectation of privacy: NT1 & NT2 v Google LLC v The Information Commissioner [2018] EWHC 799 (QB) (“NT”), per Warby J at [166].  This position is consistent with the ROA; the section 4 provisions are only applicable upon conclusion of the rehabilitation period.

Whilst the NT judgment confirms that publishing details of criminal convictions within the rehabilitation period is perfectly legitimate, it nonetheless provides a degree of protection to some rehabilitated persons, albeit in limited circumstances, by way of mitigating the permanence of information uploaded to the internet.  NT concerned two distinct civil claims brought under the tort of misuse of private information, with both claimants being rehabilitated persons seeking the de-listing of URLs referencing their conviction from the Google search engine.

The factual circumstances of NT1 and NT2 were somewhat different from one other.  NT1 had been convicted after trial in the late 1990s of conspiracy to falsely account in relation to his property business; he received a four-year custodial sentence. NT2 entered a guilty plea in the early 2000s to offences arising out of his sanctioning of unlawful phone and computer hacking with a view to identifying individuals that were seeking to disrupt his business, for which he received a six-month custodial sentence.

In considering these claims, Warby J held that whilst the starting point is that there is no reasonable expectation of privacy in relation to legal proceedings held in public, the time may come when such an expectation may arise, with Article 8 of the European Convention on Human Rights becoming a relevant consideration upon the conclusion of the rehabilitation period. Notwithstanding the finding that Article 8 may be engaged upon conclusion of the relevant rehabilitation period, Warby J held that this did not instil a “right to confidentiality or privacy”, but rather allowed for the spent nature of the conviction to be considered as a relevant, albeit weighty factor, in determining the appropriate use of personal information within a balancing exercise or parallel analysis, as advanced by the Grand Chamber of the European Court of Justice in Google Spain SL v Agencia Espanola de Proteccion de Datos (AEPD) (C-131/12).

The factors to be balanced in this parallel analysis are those of Article 8 private and family life rights in addition to a right to reputation, against competing rights including freedom of speech, information rights and other relevant factors including the nature and quality of the societal benefits of having such URLs identifiable on a search engine.  In applying this parallel analysis to the two claimants in NT, Warby J held that the factual differences were such that a de-listing order was appropriate in relation to NT2’s circumstances but not in relation to those of NT1, finding in the case of NT1 at [170] that:

“[NT1’s] business career since leaving prison made the information relevant in the past to the assessment of his honesty by members of the public. The information retains sufficient relevance today. He has not accepted his guilt, has misled the public and this Court, and shows no remorse over any of these matters. He remains in business, and the information serves the purpose of minimising the risk that he will continue to mislead, as he has in the past. Delisting would not erase the information from the record altogether, but it would make it much harder to find. The case for delisting is not made out.”

NT2’s position was regarded very differently to that of NT1, with Warby J finding at [223] that:

“…the crime and punishment information has become out of date, irrelevant and of no sufficient legitimate interest to users of Google Search to justify its continued availability, so that an appropriate delisting order should be made. The conviction was always going to become spent, and it did so in March 2014, though it would have done so in July of that year anyway. NT2 has frankly acknowledged his guilt, and expressed genuine remorse. There is no evidence of any risk of repetition. His current business activities are in a field quite different from that in which he was operating at the time. His past offending is of little if any relevance to anybody’s assessment of his suitability to engage in relevant business activity now, or in the future. There is no real need for anybody to be warned about that activity.”

Warby J highlighted in relation to both claimants the nature of their offending and the plea that they entered, with a distinction being drawn between the two claimants at [203]:

 “The nature of [NT2’s] conviction seems to me to be a significant factor in my evaluation. It is a conviction for invasion of privacy, not for any form of dishonesty. The claimant did not contest the charges, but pleaded guilty…”

This analysis is clearly bad news for those convicted persons who have contested their case at trial as well as those convicted of dishonesty offences; the public interest justifies having information pertaining to the convictions of these groups being more readily available.  The distinction drawn between NT1 and NT2 presupposes that there are two broad classes of rehabilitated persons; those who can benefit from the section 4 ROA protections by virtue of a delisting order protecting them from the scrutiny of even the most casual of enquirers and those whose convictions remain readily discoverable in the absence of an order.

In summary, the protections afforded to rehabilitated persons pursuant to section 4 of the ROA have been diluted by the meteoric rise of the internet; information that would once have been discarded is now being deposited within a readily accessible archive available to the world at large.   With search engines able to direct potential employers to third party information pertaining to the conviction of a rehabilitated person, such individuals are no longer likely to be treated as non-convicted persons, even in positions not necessitating a DBS check. The internet has thus frustrated Parliament’s intention in relation to the ROA, with the mischief it sought to rectify going unchecked in a digital world.  The NT judgment had the potential to mitigate the impact of search engines and their frustration of the section 4 ROA protections. However, it did not do so, notwithstanding this being a problem that Parliament could never have contemplated at the time of the Act’s making, some 15 years prior to the invention of the World Wide Web.

Whilst the NT judgment may help a small number of individuals in similar situations to that of NT2, it has inadvertently created two tiers of rehabilitated persons, albeit not delineating where the division falls between those whose circumstances warrant a delisting order and those that do not.  It is seemingly apparent from the judgment of Warby J that those convicted of dishonesty offences and those convicted after trial are at a far greater at risk of falling on the wrong side of the High Court’s blurred line. It is unclear whether there exists a test to determine those circumstances where the section 4 ROA protections will be meaningful by virtue of a delisting order being made; the concern being that the civil courts will approach the question with simple regard to the palatability of offending behaviour and plea.  With NT1 having lodged an appeal, it is hopeful that the Court of Appeal will be able to shed some light on the recognition and realisation of section 4 ROA protections by way of delisting orders in the not too distant future.

This article was originally published in CrimeLine and can be accessed here.

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