Spent convictions in the law of Privacy and Data Protection: Part One – Aidan Wills

References to individuals’ criminal histories are commonplace in news reporting, works of non-fiction and on social media. Unwittingly or otherwise, this may include details of spent convictions and the conduct which gave rise to them.

Publishing such information may give rise to a claim for misuse of private information and/or a breach of the Data Protection Act 1998 (“the DPA”). This post examines the issue as to the potential claims arising out of the disclosure of spent convictions in the tort of misuse of private information.  In the second part I will consider claims under the DPA.

Rehabilitation of Offenders Act 1974

Spent convictions are a statutory creation. The Rehabilitation of Offenders Act 1974 (“the 1974 Act”) primary purposes are:

“to rehabilitate offenders who have not been reconvicted of any serious offence for periods of years [and] to penalise unauthorised disclosure of their previous convictions.“

Rehabilitation relies on convictions becoming “spent”. A conviction is spent at the end of the ‘rehabilitation period,’ the duration of which is determined by the sentence handed down. This period ranges from 12 months (for e.g., a fine) to 2 years (for a prison sentence of less than 6 months), 4 years (for a sentence of 6 – 30 months) and 7 years (for a sentence of imprisonment of 30 – 48 months). For custodial sentences, the rehabilitation period runs from the date on which the sentence, including any licence period, is completed.

Convictions giving rise to certain sentences are exempt from rehabilitation. Offences leading to a sentence of more than 4 years’ imprisonment can never be spent.

Once a rehabilitation period has elapsed, the conviction is spent and its subject is regarded as a ‘rehabilitated person.’ This has various legal consequences. Most significantly, section 4 of the 1974 Act provides that, in respect of the spent conviction, the person “shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence [s] which were the subject of that conviction.” This is, in essence, a right to be forgotten, designed to enable convicted persons to (re)build professional and social relationships unburdened by their past.

Once a conviction is spent, there are two evidentiary consequences for the purposes of legal proceedings:

(1) no evidence is admissible in any proceedings to prove that the person committed/was charged with/prosecuted/convicted/sentenced for the offence(s) which was subject of the spent conviction;

(2) the rehabilitated person cannot be asked (and is not required to answer) any questions about her past which cannot be answered without referring to a spent conviction(s) “or any circumstances ancillary thereto.” This includes the conduct constituting the offences.

There is an extensive list of exceptions to the general position on spent convictions. Set out in and governed by the Rehabilitation of Offenders (Exceptions) Order 1974 (as amended), these exceptions relate primarily to applications by rehabilitated persons for employment or appointments in certain sectors. These are not relevant for present purposes.

Liability for the disclosure of spent convictions

The 1974 Act criminalises the disclosure of spent convictions in narrowly defined circumstances (concerning primarily unauthorised disclosures by officials). It does not create any general criminal or civil liability.

For the purposes of defamation claims arising from the publication of information about a spent conviction, section 8 of the 1974 Act gives protection to defendants. A publisher can rely on a spent conviction (and ancillary matters) to run a truth, honest opinion or privilege-based defence to a libel or slander claim unless the claimant can establish that the publication was made with malice.

The 1974 Act gives no such protection to defendants to a claim for misuse of private information or for a breach of DPA.

Spent convictions in the law of privacy

It is now clear that, for the purposes of the tort of misuse of private information, spent convictions are private information within the meaning of article 8 of the Convention. Although criminal convictions occur in open court and may be reported on contemporaneously, as Lord Hope explained in R (L) v Commissioner of Police for the Metropolis [2009] UKSC 3 at [27]:

“as [the conviction] recedes into the past, it becomes a part of the person’s private life.”

The Strasbourg Court endorsed this position in MM v United Kingdom [2012] ECHR 1906 [188]. In the subsequent case of Re (T) v Chief Constable of Greater Manchester Police [2015] AC 49 the Supreme Court accepted that the point at which this occurs will

“usually be the point at which it becomes spent under the 1974 Act” [18].

In other words, the 1974 Act functions to “generate” a reasonable expectation of privacy into information relating to convictions which was not previously private.

The starting point is therefore that someone who published a spent conviction could not defeat a privacy claim by arguing that a claimant had no reasonable expectation of privacy because s/he was convicted in open court.

Publishers may seek to rely on information about the offence and conviction having been reported contemporaneously; reports may remain available online long after a conviction is spent for the purposes of the 1974 Act. However, such arguments run up against the Supreme Court’s reasoning on the 1974 Act operating to make spent convictions private. Additionally, as the Supreme Court reaffirmed in PJS v NGN [2016] UKSC 26, the fact that information is in the public domain will not, of itself, defeat a privacy claim. Where the further publication of the information will give rise to (further) intrusion into the claimant’s privacy then this further publication may be unlawful.  The publication of information concerning a spent conviction may well give rise to further intrusion into private life.

If, as seems likely, a rehabilitated person can establish that s/he has a reasonable expectation of privacy in regard to a spent conviction and ancillary matters, a court would then have to move to the “second stage” and carry out the “ultimate balancing exercise” between Articles 8 and 10.

While this assessment is inherently fact sensitive, the outline of broad arguments on both sides are worth considering.

Defendants may make arguments about the public interest in reporting on historic crime and criminal pasts on the basis of its having contemporary relevance. In some cases, there might be public interest arguments for alerting the public to a person’s past. – because, for example, an individual is engaging in the same kind of behaviour which resulted in the spent conviction, The nature of the underlying offence is likely to be relevant – the more serious the criminal conduct giving rise to the conviction the stronger the argument will be in favour of disclosure.

On the other side of the balance, the 1974 Act is, however, itself a powerful factor to be taken into account in the balance. Parliament has conducted a “balancing exercise” and decided that, after specified periods, convictions should be “spent”: it has decided that, once a conviction is spent, the public interest in rehabilitation outweighs the public interest in continuing publication and knowledge of the offence.

The length of time for which a conviction has been spent is also likely to be relevant.  The Court will also consider the impact that continuing publication is having or is likely to have on the claimant.

All these factors and the other circumstances of the case will then be taken into account in arriving at the “ultimate balance”: either in favour of the spent conviction remaining private or in favour of it being disclosed.

The second part of this post will dealt with spent convictions under the DPA.

Aidan Wills is a barrister at Matrix Chambers. He specialises in media and information law, public law and employment law.