The UK Supreme Court on Thursday rejected an appeal regarding offenders’ obligation in Northern Ireland to disclose convictions to third parties such as employers and insurance companies under the Rehabilitation of Offenders (Northern Ireland) Order 1978.
The court assessed the proportionality of the rights of offenders to be treated equitably against the legitimate aims of the order. The order seeks to protect the rights and freedoms of others in relation to the appellant, such as potential employers and insurers, and to prevent disorder or crime, asserting that a more restricted rehabilitation regime will deter potential offenders.
The court held that the order strikes a fair balance between competing private interests. Furthermore, the court highlighted that the rehabilitation regime under the order falls within the wide margin of appreciation that can be exercised by the legislator in this context. Also, the court viewed that the type of individualized assessment suggested by the appellant can be costly and lead to inconsistent treatment of offenders in similar positions when the appellant is deemed responsible for his situation by committing a serious offense.
The appellant, who was convicted of arson and possession of a petrol bomb when he was 21 in 1980, requested the court exercise the power under Section Four of the Human Rights Act 1998 (HRA) to declare the order incompatible with the appellant’s right to respect for private and family life under Article Eight of the European Convention on Human Rights (ECHR).
The appellant was released from prison in 1982. As he was sentenced to a term of imprisonment of more than 30 months, Article Six of the order does not allow his convictions to be treated as “spent” and does not exempt him from disclosing his convictions. He asked the court to practice case-by-case review in such matters and argued that it is disproportionate to assume that many of those offenders like him will pose any greater risk of re-offending than the general population.
The order in Northern Ireland remains unchanged even though the Rehabilitation of Offenders Act 1974 in England, Wales, and Scotland was amended in 2022 to allow for any conviction to become spent after a certain period except in certain serious offenses such as arson.
At the hearing, the judges were told that there are some considerations of changes to the order but that such proposals are still at the consultation stage. The appellant, therefore, cannot have his conviction treated as spent under the regime in any part of the UK.