Failure to provide a mechanism for convictions to become spent on an application is incompatible with Article 8 ECHR, finds Northern Irish High Court


Re: JR123, Re Application for Judicial Review [2021] NIQB 97

The High Court of Justice in Northern Ireland considered an application from an applicant who had been sentenced to a custodial sentence of a number of years after having been involved in the petrol bombing of a house in 1980.

The applicant sought to challenge the legality of Article 6(1) of the Rehabilitation of Offenders (Northern Ireland) Order 1978 which prevented his previous convictions from ever becoming “spent” on the grounds that he was sentenced to a custodial term exceeding thirty months.  He argued that the relevant provision is incompatible with his right to private and family life under Article 8 of the European Convention on Human Rights.

Since serving his sentence, the applicant had no involvement with the criminal justice system and no further convictions.  He had sought build a life for himself, but submitted that he had experienced a number of difficulties and adverse consequences of his convictions. These included difficulty in obtaining competitive insurance quotes, difficulty in finding employment, and the fact that could never become fully rehabilitated in law.

Held– the ongoing interference with the applicant’s Article 8 rights was not proportionate.  The objectives of protecting the public and ensuring confidence in the justice system can be achieved by the imposition of lesser restrictions which would facilitate the opportunity for the applicant to apply to have his conviction deemed to be spent.

In reaching this conclusion, the court reviewed a number of significant decisions, and had particular regard for R(P) v Secretary of State [2020] AC 185. Applying Lord Sumption’s reasoning, the court  held that, ultimately, it is for the court to assess the issue of proportionality.

The court had careful regard to the clear public interest and benefit to society in providing offenders the opportunity to fully rehabilitate in society after having been convicted of criminal offences, as well as the recognition of the State’s entitlement to ensure that those who are convicted of serious offences serve their appropriate punishment. In the context of rehabilitation, they said, ‘it is entirely legitimate to impose restrictions on the circumstances in which individual convictions can be regarded as spent.’

The Court held that it would be both practicable and proportionate to devise a system of administrative review which would enable persons such as the applicant to apply to have their conviction deemed to be spent.  The court considered that there must be some circumstances in which an appropriate Tribunal could reliably conclude that an individual’s conviction should be deemed to be spent.


The court made a declaration that Article 6(1) of the Rehabilitation of Offenders (NI) Order 1978 is incompatible with Article 8 of the ECHR pursuant to section 4(4) of the Human Rights Act 1998 by reason of a failure to provide a mechanism by which the applicant can apply to have his conviction considered to be spent, irrespective of the passage of time and his personal circumstances.

Hugh Southey QC was involved in this case.