Updated Fact Sheet: NIHRC Legal Action on the Rehabilitation of Offenders in Northern Ireland
On 6 March 2025 the UK Supreme Court (UKSC) handed down judgment in the matter of an application for Judicial Review by JR123 (Appellant) (Northern Ireland).
A summary of the judgment can be found here.
The full judgment can be found here.
More information can be found on the UKSC website here.
Background
For more information on the previous stages of this case and additional background information, please see our previous Fact Sheet document here.
The UK Supreme Court granted the Northern Ireland Human Rights Commission (the Commission) permission to appeal the decision of the NI Court of Appeal in determining 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 Rehabilitation of Offenders (NI) Order 1978 is not arbitrary in substance and effect.
This appeal was heard by the UKSC in October 2024. The UKSC had to determine whether under Article 8 of the European Convention on Human Rights (Article 8 ECHR), the state is entitled to legislate for a system of rehabilitation based on categories of offences defined by bright line rules, which exclude the application of rehabilitation effects in the most serious category, or whether on the contrary it is obliged to provide for a system of individual reviews on a case-by-case basis, at least for those individuals with offences in the most serious category.
The Commission argued that it was not compatible with Article 8 ECHR for the state to impose by a general measure an obligation on an offender to disclose their convictions whenever asked for throughout their life without the possibility of an individualised review of the circumstances of their case to assess their risk to society.
The UKSC Decision
On 6 March 2025, the UKSC handed down its decision in this appeal and held that Article 6(1) of the Rehabilitation of Offenders (NI) Order 1978 was not incompatible with Article 8 ECHR.
The UKSC assessed whether there was a breach of Article 8 ECHR with reference to the issue of whether the measure was proportionate with regard to its legitimate aim, stating that whether a measure is proportionate to satisfy Article 8 ECHR is a question of law which calls for an assessment in light of the facts of the case [paragraph 35].
Where the question concerns ECHR compatibility and proportionality of general rules set out in legislation, it is for the appellate Court (in this instance, the UKSC) itself to determine the question of proportionality to fulfil its function of providing general guidance on the law.
The UKSC’s approach to Proportionality
The UKSC applied the test affirmed most recently in R (AM (Belarus)) v Secretary of State for the Home Department [2024] UKSC 13; [2024] 2 WLR 1075 (“AM (Belarus)”), para 53, as follows:
1. is the aim sufficiently important to justify interference with a fundamental right?
2. is there a rational connection between the means chosen and the aim in view?
3. was there a less intrusive measure which could have been used without compromising the achievement of that aim?
4. has a fair balance been struck between the rights of the individual and the general interest of the community, including the rights of others?
In applying this test, the UKSC examined the margin of appreciation afforded to the legislator in determining what measure is appropriate to deal with the issue and whether a fair balance has been struck between relevant competing interests.
Here the UKSC viewed that this rehabilitation scheme was devised so as to take into account and give significant weight to a range of factors:
. the gravity of the particular offence in the individual circumstances of the case;
. acceptability to the public of the degree of rehabilitation to be provided for, having regard to the gravity of the offence;
. the need for equity (and the perception of equity) as between offenders; and the need for the scheme to be reasonably simple and practical and well understood in its operation.1
When assessing the legitimate aims, the UKSC viewed that the legislator had to take into account various aims such as “the protection of the rights and freedoms of others”, including those persons with whom an offender like the appellant seeks to enter into employment or a contract of insurance and the rights of other offenders to be treated equitably by comparison.
The UKSC ultimately upheld the decision of the NI Court of Appeal and concluded that Article 6(1) of the Rehabilitation of Offenders (NI) Order 1978 strikes a fair balance between the rights of the appellant, the rights and freedoms of others and the interest of the general community, that it falls within the margin of appreciation which is applicable in this context and therefore was not incompatible with Article 8 ECHR.
1. As set out in paras 17-21 of ‘Living it Down: The Problem of Old Convictions’, 1972