Twenty Fourth Report Contents

Instruments drawn to the special attention of the House

Draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2019

Date laid: 1 April 2019

Parliamentary procedure: affirmative

This draft Order amends legislation under the Rehabilitation of Offenders Act 1974 to allow the disclosure of spent convictions before an inquiry held under the Inquiries Act 2005. The Explanatory Memorandum presents a strong argument for the protection to be waived in relation to the current Undercover Policing Inquiry, however the Order takes the broader step of making this same provision for any future inquiry. This report includes additional information which the House may find useful when debating whether the exception proposed finds the right balance between the public interest and protecting the rights of the individual. This Sub-Committee had some concerns over the breadth of the power and what impact it might have on the lives of those who have been rehabilitated.

We draw this Order to the special attention of the House on the ground that it gives rise to issues of public policy likely to be of interest to the House.

1.Article 2 of this Order amends legislation under the Rehabilitation of Offenders Act 1974 (“the 1974 Act”) by adding a new exception to Schedule 3 to allow the disclosure of spent convictions before an inquiry where disclosure is necessary to allow that inquiry to fulfil its terms of reference under the Inquiries Act 2005 (“the 2005 Act”). The Order is laid by the Ministry of Justice (MoJ) and is accompanied by an Explanatory Memorandum (EM).

Background

2.The 1974 Act affords offenders protection from having to disclose their convictions and cautions once they have become ‘spent’ under the terms of the Act. Section 4(1) of the 1974 Act states that spent convictions cannot be admitted into evidence for judicial proceedings and paragraph 3(1) of Schedule 2 to the Act has the same effect for spent cautions. However, the Act gives the Secretary of State the power to make an order to disapply these provisions for certain proceedings, meaning that spent convictions and cautions can be admitted into evidence for those proceedings.

The Undercover Policing Inquiry

3.Paragraphs 6.6 and 7.3 of the EM present a strong argument for the protection to be waived in relation to the current Undercover Policing Inquiry. The EM states that the legislative change was initially requested by Sir John Mitting, the chair of that inquiry, because the inquiry would be unable to fulfil its terms of reference without it.

4.Although section 7(3) of the 1974 Act allows judicial authorities to consider evidence of spent convictions and cautions where justice cannot otherwise be done, Sir John raised the question of whether an inquiry would fall within the Act’s definition of “justice”, and whether without an exception that limitation might inhibit his inquiry from fulfilling its terms of reference. He also stated that without an exception his inquiry would need to consider each admission of evidence on a case by case basis, which would take up significant time and resources. We find these arguments persuasive.

Blanket exception

5.However, rather than just making an exception for the Undercover Policing Inquiry, the Order takes the broader step of giving this same exception from the 1974 Act to any future inquiry held under the 2005 Act. The power is qualified so that its use is limited to “the purposes of fulfilling the terms of reference of that inquiry”.

6.We have obtained the following additional information to help the House evaluate the likely effects of this blanket exception:

“We would expect all inquiries to preserve the anonymity of individuals as far as is necessary to respect their rights to privacy. In particular, the Chairman has the power under section 19 of the Inquiries Act 2005 to restrict the publication of information.  They will take decisions on a case by case basis, taking into account in particular the need to balance openness with any competing public interest in restriction or private interest in privacy.”

Conclusion

7.The House may find this additional information useful when debating whether the exception proposed finds the right balance between the public interest and protecting the rights of the individual. This Sub-Committee had some concerns over the breadth of the power and what impact it might have on the lives of those who have been rehabilitated.





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