Northern Ireland landmark court ruling in unspent conviction challenge

Northern Ireland landmark court ruling in unspent conviction challenge

In November’s edition of the Debrief, we reported on the proposed reductions to rehabilitation periods for ex-offenders in England and Wales, under the new Police, Crime, Sentencing and Courts Bill 2021.

When compared to England and Wales, Northern Ireland currently has the strictest rehabilitation periods, with a sentence of imprisonment over 30 months (for over 18s) always having to be declared and never becoming “spent”. On the 8th January this year, a public consultation opened in Northern Ireland, seeking public opinion on reforming and reducing these rehabilitation periods “to reflect changes in sentencing practices and developments in other jurisdictions.”

On the 1st November 2021, Lord Justice Colton of the Northern Ireland High Court ruled in support of an individual who sought judicial review to challenge the legality of The Rehabilitation of Offenders (Northern Ireland) Order 1978. The applicant (granted anonymity) is a 62 year old man who committed an offence of arson in the early 1980s, no one was injured, the offence was not paramilitary or sectarian in motivation, though damage to property did occur. Since completing his custodial sentence, the individual has had no more involvement with the criminal justice system and no further convictions. Under current law, his conviction can never be spent and it was argued that this was in conflict with his right to private and family life under the European Convention on Human Rights (ECHR) Article 8. The unspent conviction means that he must disclose his conviction when applying for insurance (which has led to refusals and high premiums); he has struggled to obtain employment and so resorted to starting his own business; mortgage providers and landlords ask about his convictions, and he will never be deemed fully “rehabilitated” by law.

The Court took these specific circumstances into account and agreed in support of the individual, before making a declaration that the failure to provide a review process for unspent convictions is a breach of the individual’s human rights under the ECHR Article 8. The court surmised that it would be proportionate and practical to devise an administrative review system which would allow individuals to apply to have their convictions deemed as spent.

This case was supported by the Northern Ireland Human Rights Commission (NIHRC) who welcomed the judgement:

“The NIHRC welcomes today’s judgment and looks forward to amendment of the relevant legislation. The NIHRC assisted this individual because the current law presents an unjustifiable barrier to rehabilitation. A person who received a prison sentence of more than 30 months is unable to ever become a rehabilitated person, no matter how much time passes or whatever steps they take to rehabilitate. This life-long barrier to rehabilitation has a detrimental impact upon people (and also their families) and creates further barriers to rehabilitation by restricting access to employment and travel, amongst other things. This has had a detrimental impact on the applicant and is an issue faced by many across Northern Ireland.”

The Chief Executive of the Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO) also welcomed the judgement:

“Today’s judgment brings us a step closer to making the necessary changes to the rehabilitation of offenders legislation in Northern Ireland. It paves the way for change for those who have an unspent conviction and to date have always had to disclose their conviction…The consequences of a criminal conviction go far beyond the sentence imposed by a court.”

Olwen Lyner, Chief Executive of NIACRO

The final declaration of the court was that Article 6(1) of the Rehabilitation of Offenders (NI) Order 1978 is incompatible with Article 8 of the ECHR. The Northern Irish consultation into reform of rehabilitation periods has closed and the NIHRC will continue to monitor its progress.

Article 8: Right to privacy

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

2. 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.