As part of our policy and campaigning work, we see strategic litigation as an important way of pushing for change. This page looks at our involvement in a legal case that went all the way to the Supreme Court.
Background
People with a criminal record often face stigma and barriers which can sometimes last for decades after they have been convicted or served their sentence.
In 2018, Unlock had the opportunity to try a different tactic: it intervened in a case in the Supreme Court for the first time in the organisation’s 18-year history. The case started when several individuals in England, Wales and Northern Ireland brought a challenge against the government’s harsh system of criminal record checks, known as the Disclosure and Barring Service (DBS). This system requires past offences to be revealed in a number of circumstances, for example, when applying for a job. The individuals bringing the case claimed that the regime hinders the possibilities for rehabilitation. The government which was defending the current regime lost in the High Court and the Court of Appeal. The Court of Appeal said the scheme – in relation to multiple convictions and certain specified offences – breached individuals’ right to private and family life under Article 8 of the European Convention on Human Rights. The government appealed this decision to the Supreme Court.
At this point, Unlock decided to step in. Christopher Stacey, a co-director of Unlock, says it made sense to intervene because the issues in the case are core to the mission of what Unlock is trying to achieve. Christopher pointed back to 2013 when the government had brought in some changes that Unlock thought were positive but knew didn’t go far enough. At that time, Unlock began to collect examples and case studies of people who were not benefiting or still being harmed by the system. Christopher says, “We were thinking at that point that we would either bring our own legal challenge or support one that was ongoing.” Having a public law solicitor on the charity’s trustee board was helpful in that it allowed the organisation to have “ongoing understanding” of the risks and opportunities of legal intervention.
What we did
When the case reached the Supreme Court, Unlock instructed Caoilfhionn Gallagher QC to act on their behalf and offer the evidence they had collected. Although the organisation hadn’t had a long-standing relationship with her, Christopher knew Caoilfhionn had been involved in a similar recent case and connected with Caoilfhionn after seeing her speaking at an event. Christopher notes that “We were able to develop those relationships in a fairly short space of time in a way that worked for what we were trying to do.”
At the Supreme Court stage, a number of charities were involved including Liberty and Just for Kids Law, who were representing two of the individuals, and Clan Childlaw from Scotland. Unlock worked closely with their solicitor and barrister in developing the legal intervention and was careful in making sure that their submissions added value. Unlock argued in their written submissions that people with relatively minor convictions and cautions “face stigma and obstacles because of their criminal records often many decades after they have been sentenced or cautioned and often throughout their adult lives despite their criminal records dating from childhood.” The submission also used Unlock’s extensive research to argue that children in care are more likely to commit childhood crimes as a result of their circumstances, and therefore as a group they are disproportionately criminalised by DBS. The submission suggested that children can become known to police as a result of aspects of their home life that are largely out of their control: “behaviour which is normal or common in a family home environment (teenage door-slamming, threats during an argument with adults) attracts police attention.”
Christopher attended the three-day Supreme Court hearing in June 2018, and notes that Unlock’s submission had a real impact, saying it was “good to see that information provided by us came up a number of times.” The organisation also launched a research report that was based on data that they had collected from Freedom of Information requests to coincide with their submission to the Court.
Unlock relied on crowdfunding through Crowdjustice to cover the organisation’s legal costs. The organisation received overwhelming support and raised £17,000 — enough to cover costs and provide a little bit of support to the campaign work around the case.
Christopher remarks that the case was “not something we could do every day,” and that Unlock was able to draw on the fact that they’d never undertaken this level of legal intervention before in order to appeal to donors.
The crowdfunding campaign was useful in raising awareness of the issue and the legal case amongst individuals and stakeholders. Christopher notes that “it allowed people to connect with something that we were doing. It was a very clear activity.” However, he also recognises the enormous amount of effort that had to go into the campaign’s launch and promotion.
Crowdfunding allowed people to connect with something that we were doing. It was a very clear activity. It was a very clear cost that we had. This wasn’t just an ongoing fundraising initiative. It was to allow us to do something at a moment in time.
The result
The Supreme Court judgment was announced in January 2019. The Court found that two aspects of the criminal records disclosure scheme are disproportionate and in breach of Article 8 of the European Convention on Human Rights. The first is the blanket rules that require the automatic disclosure of all convictions where a person has more than one conviction; the second is the requirement that some childhood cautions be disclosed indefinitely.
The ruling has the potential to affect many thousands of people with old and minor criminal records.
There was a significant delay between the Supreme Court ruling and implementation of changes. We worked in a number of ways to keep the pressure up.
In July 2020, the Government responded to Supreme Court ruling with plans to change criminal records disclosure regime.
Finally, in November 2020 the government confirmed that the planned changes to filtering rules would take effect from 28 November 2020.
What’s next?
Despite the positive impact of these changes, we are still left with a criminal records system where many people with old and minor criminal records are shut out of jobs that they are qualified to do because of a mistake they made years ago
For more details, see our policy page on DBS filtering and find out more about the #FairChecks movement
Much of the content on this page was originally featured in a report by The Baring Foundation: Transforming Lives Through Law – Ten examples from civil society organisations
