Updated Fact Sheet: NIHRC Legal Action 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, 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.
Sentences of more than 30 months imprisonment can never have their convictions spent irrespective of their personal history or circumstances and regardless of how long ago the offence(s) occurred.
In England and Wales, the equivalent legislation, the Rehabilitation of Offenders Act 1974, 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.
A report 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.
The report states 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 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 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. In 2021, the Department published the results of a consultation on the rehabilitation of offenders. However, the Department has not accepted that there is a need to legislate to comply with Article 8.
What action has the Northern Ireland Human Rights Commission taken to challenge the law?
In 2021, the Northern Ireland Human Rights Commission (the Commission) supported an individual applicant, who was granted anonymity, in Judicial Review proceedings to challenge the law which prevents convictions ever becoming spent if the sentence was for more than 30 months imprisonment.
The individual committed an offence of arson in the early 1980s, no one was injured though damage to property occurred. The offence was neither paramilitary related nor sectarian in motivation.
The individual was arrested and completed the prison sentence. Since completing the sentence, the individual has had no further involvement with the criminal justice system and has had no further convictions.
The conviction can never be spent under the current law and the Commission was 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.
What was the outcome of the case?
On 1 November 2021, Mr Justice Colton declared that an obligation to disclose any prison sentence in excess of 30 months was incompatible with human rights law. Mr Colton stated:
“It is appropriate to make a declaration to the effect that Article 6(1) of the Rehabilitation of Offenders Order 1978 is incompatible with Article 8 of the ECHR by reason of a failure to provide a mechanism by which the applicant can apply to have his conviction considered to be spent, irrespective of the passage of time and his personal circumstances.”
For further details of the case see our statement and 2021 Fact Sheet here:
The Court of Appeal in Northern Ireland - What was the result following an appeal?
The Department of Justice sought an Appeal of the ruling citing case law for having pre-defined categories within the legislative provisions.
On 3 May 2023, the Court of Appeal held that the High Court was incorrect in concluding and declaring that Article 6(1) of the Rehabilitation of Offenders (NI) Order 1978 (‘the Order’) is incompatible with Article 8 of the European Convention on Human Rights. The Court of Appeal therefore reversed the decision of the High Court.
The Court of Appeal has determined that any ongoing interference with the respondent/applicant’s right to a private and family life was proportionate and that Article 6(1) of the Order is not arbitrary in substance and effect. In reaching this conclusion, the Court of Appeal considered that the legislature enjoyed a reasonable margin of appreciation in this area.
Therefore, it remains that Offenders convicted with sentences over 30 months in Northern Ireland are prevented from having these past convictions deemed to be spent.
The UK Supreme Court
The Commission was granted permission to appeal the decision of the Court of Appeal in November 2023 by the UK Supreme Court (‘UKSC’). The hearing will take place on 23 and 24 October 2024 and the UKSC will consider the following issues:
(1) Does article 6(1) of the Rehabilitation of Offenders (Northern Ireland) Order 1978 violate the appellant's right to respect for private and family life under Article 8 of the European Convention on Human Rights because it fails to provide for a review mechanism whereby a previous conviction can be treated as "spent" for the purposes of that order?
(2) If article 6(1) is a violation, should the court make a declaration of incompatibility?
(3) If article 6(1) is a violation, was the Court of Appeal wrong to uphold the High Court's refusal to award the appellant damages?
[2] ibid
[3]https://www.judiciaryni.uk/files/judiciaryni/decisions/Department%20of%20Justice%20and%20JR123.pdf
ENDS