2021 Fact Sheet: Human Rights Commission Legal Action on the Rehabilitation of Offenders in Northern Ireland

The Northern Ireland Human Rights Commission is challenging the current law on the rehabilitation of offenders in Northern Ireland.

What is the current law in Northern Ireland on the Rehabilitation of Offenders?

Under article 6(1) of the Rehabilitation of Offenders (NI) Order 1978 (ROO), only sentences of imprisonment or corrective training under 30 months can be spent. Once spent, a person is no longer required to disclose their past criminal conviction after a certain period of time, meaning that they can be treated as if never convicted. For example, for sentences of between 6-30 months, the conviction becomes spent after 10 years. This means that a person in Northern Ireland who has been convicted and receiving a sentence of over 30 months can never be rehabilitated irrespective of their personal history or circumstances and regardless of how long ago the offence(s) occurred. In the applicant’s case, the offences occurred over 40 years ago. They continue to have to disclose their criminal record undermining their right to privacy and may face discrimination making living a normal, law abiding life more difficult.

In England and Wales, the equivalent legislation, the Rehabilitation of Offenders Act 1974 (ROA), was updated in 2014 to allow sentences of up to 48 months to become spent after a certain period of time. For example, sentences between 30 – 48 months can become spent after a total period of the sentence plus 7 years. In 2020, the UK government announced that tackling re-offending through rehabilitation would be a key area of focus and began creating a cross-government strategy with the Ministry of Justice identifying the further reform of the ROA as a major part.

A recent paper by the Ministry of Justice[1] on reoffending rates demonstrates that after 7 years without re-offending, people sentenced to 4 years are at the same level of risk of reoffending as the general population supporting the argument that there is no justification to impose a lifelong disclosure requirement on the applicant and others like him.

What is the Northern Ireland Human Rights Commission’s position?

Following pre-action correspondence, the Commission decided on 20 January 2020 to assist in initiating legal action against the Department of Justice to challenge the legality of article 6(1) of the Rehabilitation of Offenders (NI) Order 1978 on behalf of the applicant who was convicted in 1980 for various offences totalling a sentence of 5 years. The applicant was subsequently released in the Autumn of 1982 and despite the offences occurring over 40 years ago with no further involvement in the criminal justice system, is still required to declare this conviction.

The Commission is concerned that the applicant and others who are disproportionately impacted by the legislation have experienced a number of difficulties and negative consequences as a result of having to declare their convictions.

Research has highlighted that these disclosure requirements can, themselves, contribute to re-offending by impeding access to employment. They also produce barriers to many other areas in life including, education, training, volunteering, insurance, housing and travelling as well as access to financial products such as mortgages. The system imposes burdens on a significant number of people who are unlikely to commit further offences.[2]

What other parties are involved?

NIACRO and Unlock have provided supporting affidavits in the applicant’s case.

NIACRO: NIACRO is a voluntary organisation which has been working for almost 50 years to reduce crime and its impact on people and communities.

Unlock: Unlock is an independent award-winning national charity that provides a voice and support for people who are facing stigma and obstacles because of their criminal record, often long after they have served their sentence.

What human rights are engaged?

Not allowing a person to be rehabilitated for the rest of their life excludes him or her from the legal, social, moral and psychological benefits of being rehabilitated. The applicant is arguing that denying a person a ‘right to forget’ is a breach of Article 8 of the European Convention on Human Rights, which protects the right to private and family life. Article 8 states:

• Everyone has the right to respect for his private and family life, his home and his correspondence.

• There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

Under the current legislative regime, there is no review mechanism for past offenders to have their convictions spent irrespective of the passage of time and their personal circumstances. The applicant argues that the absence of this mechanism in itself renders the relevant provisions incompatible with Article 8.

Does the Commission support non-disclosure of all types of offences?

Allowing convictions becoming spent will not limit disclosure of convictions for the purposes of vetting people applying for ‘sensitive occupations’. In these circumstances, the police can still disclose spent convictions under the Police Act 1997. This will be undertaken with the benefit of a review by an independent review, a mechanism currently not available to those whose convictions remain unspent.

What remedies are the applicant seeking?

The applicant seeks to quash or strike down the relevant provisions of the Rehabilitation of Offenders (NI) Order 1978 and for the Court to declare them incompatible with his Article 8 rights as they are infringed in a manner which is neither proportionate, necessary or justified in a democratic society. If successful it would be a matter for the DoJ (NI) and NI Executive to consider changing the law to make it compatible with human rights.

What is the position of the Department of Justice?

The Department of Justice maintains that the provisions are not incompatible as any interference with Article 8 is in accordance with the law, pursues a legitimate aim of public safety and is proportionate. Further, the Department has commenced a process of possible reform with a consultation exercise on the rehabilitation of offenders. However, the Department has not accepted that there is a need to legislate to comply with Article 8. The Commission supports the applicant’s argument that a remote possibility of future law reform with an indefinite timescale does not provide the Department with a legally justified basis to interfere with the applicant’s rights. The Commission’s response to the consultation can be found here.

Important Dates

This case was heard remotely at 2pm on Wednesday 20 January 2021 at Belfast High Court. The applicant was granted leave.

The full hearing will be heard remotely at 10.30am on 6 May 2021 in the Judicial Review Court.

[1] https://assets.publishing.serv...

[2] ibid