The government’s response to P, G & W: A welcome, if bare minimum, step
Posted on 8th September 2020
On 30th January 2019 the Supreme Court in the case of P, G & W V The Secretary of State for the Home Department  UKSC 3 considered in detail the current regime for the disclosure of a person’s criminal record. It found the following aspects of the regime to be unlawful – (1) the “multiple offence” rule, which mandates that a person’s entire criminal conviction history will be disclosed on Standard and Enhanced DBS certificates if that person has more than one conviction recorded against them, for any offence and (2) the rule that included youth cautions, reprimands and warnings among matters that must be disclosed in certain circumstances (see my previous blog on the decision here).
The decision, hugely significant as it was, did not in fact change the law. Parliament was required to introduce new legislation to give effect to it, and practitioners who advise in this area of law have since then been waiting with baited breath for the government’s proposals, which have finally arrived.
On 9th July 2020 the government announced that it had laid before Parliament a draft statutory instrument to amend the “filtering” rules so as to remove the requirement for automatic disclosure of youth cautions, warnings and reprimands and to remove the automatic disclosure of all convictions where the individual has more than one conviction.
The provisions contained within the draft SI will on the face of it remedy the deficiencies in the disclosure regime that the Supreme Court highlighted in P, G & W. Indeed, the proposals go slightly further than the Supreme Court did in that they include youth cautions and not just warnings and reprimands in the list of out-of-court disposals that will be filtered when a young person turns 18.
The “serious offence” rule, however, survives unchanged. This is the rule that mandates automatic disclosure of cautions and convictions for certain pre-defined “serious” offences. The survival of this rule means that the regime is still capable of causing injustice in certain cases, for instance in the case of a person who has a very old caution or conviction for an offence of ABH where the injury was very minor and it could just have easily have been charged as a common assault with some negotiation. Such matters will still fall to be disclosed automatically for life it seems, although the necessity for and the justice of doing so seems highly questionable.
It will be interesting to see how the proposals deal with the issue of youth cautions, warnings or reprimands that have been given for “serious” offences. It seems as if the proposals will apply an automatic filter to all youth cautions, reprimands and warnings regardless of the offence committed. This is, of course, a welcome step and adheres to the spirit of P, G & W, but it is capable of producing somewhat anomalous outcomes in the case of out-of-court disposals for “serious” offences given when a person has just turned 18.
By way of illustration, if a young person is given a youth caution for ABH the day before their 18th birthday, it seems as if the youth caution will be automatically filtered from their record the following day. However, if that same person is given an adult caution for ABH the day after their 18th birthday, it will never be filtered. If such anomalies are not addressed, for instance by the introduction of a pre-disclosure review mechanism for certain “serious” offences, then the proposals, although welcome, will be flawed and will only do the bare minimum required in order to comply with the judgement.