England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Wednesday, 25 October 2006

1. LORD JUSTICE HUGHES: This is a Crown application for leave to appeal a ruling of the trial judge in the crown court. The right to seek leave to appeal is given by section 58 of the Criminal Justice Act 2003. The point at issue is the ambit of section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 and its operation upon an application form for employment in a case where the applicant had previously suffered a conditional discharge. We have no doubt that the point raised is a proper one for argument. We give leave.
2. The defendant in the court below was indicted for the offence of obtaining a pecuniary advantage by deception, contrary to section 16 of the Theft Act 1968. The pecuniary advantage was the opportunity to earn money in employment. She had applied in May 2003 for a job on the civilian staff of the Metropolitan Police. The application form asked her, unsurprisingly, a number of questions. Question 7 had the heading "Convictions". It went on to ask this question:

"Have you ever been convicted of an offence (including motoring but not parking offences) or is any charge or summons at present outstanding against you?"

There were then boxes for "Yes" or "No" and there was a warning that the Rehabilitation of Offenders Act does not apply to questions asked by this potential employer, as indeed it does not as a result of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. The applicant ticked the box marked "No". She signed a declaration at the conclusion of the form that the information she had given was true to the best of her knowledge and belief.

3. In fact nine years earlier, when she was 17 years old, the defendant had appeared at a magistrates court for an offence of shoplifting. The court had made an order for her conditional discharge for 12 months and ordered her to pay £30 in costs.
4. The present prosecution depended upon the assertion by the Crown that to tick the box marked "No" and thus answer that she had never been convicted of any offence, was a false representation and therefore a deception for the purposes of section 16 of the Theft Act.
5. Section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 repeats earlier legislation which has been in place since at least 1948. It now provides as follows:

"Subject to subsection (2) below, a conviction of an offence for which an order is made under section 12 above discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under section 13 above."

The reference to "subsequent proceedings" is a reference to proceedings for breach. This conditional discharge had not been made under section 12 because it had been made before it came into force, but the section applies equally to orders made under the antecedent legislation; that is to be found in paragraph 1 sub-paragraph 2 of Schedule 11. On the face of it therefore, that section appears to mean that when one is no longer considering the proceedings before the magistrates in 1994, and unless one is considering any subsequent breach proceedings, which we are not, but rather when one is considering a job application 10 years later on, the appearance in court does not rank as a conviction.

6. The Crown contended before the judge and contends here that the defendant's answer to question 7 was nevertheless a false representation. We should say that the point is an academic and technical one, albeit one of some importance. It is not in fact suggested by the present defendant that she had section 14(1) in mind when she filled in the form, but of course that does not alter the effect of the section whatever it may be.
7. Before the judge below, the Crown contended, first, that the ambit of section 14 was qualified by the provisions of the Rehabilitation of Offenders Act 1974. We can deal with that argument briefly because, rightly in our judgment, Mr Colman does not pursue it in this court. The argument below was based upon section 1(4) of the Rehabilitation of Offenders Act. That subsection provides that notwithstanding anything in section 14 of the 2000 Act, a conviction which has been followed by a conditional or absolute discharge shall rank as a conviction for the purposes of the Rehabilitation of Offenders Act so that the person in question may become rehabilitated in respect of it and the conviction may become spent. That provision is necessary because the effect of the Rehabilitation of Offenders Act, once a person is rehabilitated and the conviction is spent, is wider than the provisions of section 14 of the 2000 Act taken alone. Whilst section 14 of the 2000 Act prevents the court appearance from ranking as a conviction, it does not enable any person to assert that they have never committed the offence or for that matter that they have never been found guilty of it. For the ability to contend that the offence has never been committed, the rehabilitated person has to look to the provisions of the Rehabilitation of Offenders Act, in particular section 4(2). In the court below the judge rejected the submission that the effect of section 1(4) of the Rehabilitation of Offenders Act was not limited to that Act but imposed a qualification overall upon the effect of section 14 of the 2000 Act. We are quite satisfied that the judge was right about that and that Mr Colman is correct not to pursue that point in this court.
8. Whilst we are dealing with the Rehabilitation of Offenders Act, we record that it does not in any event apply to applications for employment by a number of specified employers, including police forces. That, as we have already said, is the effect of the exemptions order to which reference was made on the form which this defendant filled in.
9. The argument which Mr Colman for the Crown has pursued in this court is a rather more sophisticated, not to say arcane one. His contention is that properly construed the question on the form did not ask whether there was a conviction but asked a different and significantly different question, namely "Have you ever been convicted of an offence?" He concedes that if the question had been "Do you have any conviction?", the defendant's answer "No" would have been correct and he concedes that that is because of section 14(1) of the 2000 Act and for no other reason. However, he says that since the question is not "Do you have a conviction?" but rather "Have you ever been convicted?" the answer is a false representation.
10. For that proposition he founds in particular upon the decision of the Court of Appeal in a judicial review case, R v Home Secretary ex parte Thornton [1986] 2 All ER 641. In that case the question before the court was whether a police officer had committed the disciplinary offence of criminal conduct. The offence was defined by the relevant regulation in these terms:

"15. Criminal conduct, which offence is committed where a member of a police force has been found guilty by a court of law of a criminal offence."

11. The police officer in question had appeared before a magistrates court for a criminal offence and had been conditionally discharged. The question for this court was whether despite the fact that a conditional discharge had ensued he had nevertheless been found guilty by a court of law of a criminal offence. This court concluded that he had. It drew a distinction between the expression "found guilty" in the definition of criminal conduct, on the one hand, and "conviction" as it appeared in the then operative equivalent of the present section 14 on the other. The relevant provision was in fact section 13 of the Powers of Criminal Courts Act 1973, which was in all material respects in identical terms.
12. In reaching that conclusion, Purchas LJ drew attention to the different senses in which the word "conviction" is sometimes used in and about the criminal justice system, not necessarily in statute. He observed that it is sometimes used - and he did not mean in statute - as synonymous with finding of guilt, and elsewhere used in a formal sense as meaning the finding of guilt coupled with ultimate disposal. Nicholls LJ, in a concurring judgment, made similar but brief reference to the different senses in which the word "conviction" is used outside statute within the criminal justice system. Mr Colman founds upon that distinction for the proposition that there is a critical difference between "conviction" (which means final disposal) and being "convicted" (which he says means being found guilty).
13. We are unsurprised by the decision of this court in ex parte Thornton. The decision, as explained in all three judgments, was that there was a critical difference between the words of the disciplinary offence which were "found guilty", on the one hand, and the expression "conviction" as it appeared in section 13 of the 1973 Act on the other. It does not follow, as it seems to us, that there is any identical distinction to be found when the words in question are on the one hand "conviction" and on the other hand "convicted". We agree that if the question in the present case had been "Have you ever been found guilty of an offence?" the defendant's answer would undoubtedly have been a false representation and capable of being a deception. But it was not; it was "Have you ever been convicted?"
14. Very properly Mr Colman drew our attention to two cases involving the meaning of section 40 of the Criminal Justice Act 1967 in the context of the ability of a court to activate a previously imposed suspended sentence. Section 40, when it was in force, conferred the power to activate a suspended sentence upon a court before whom the defendant had been convicted of a further offence. In two cases this court held that that did not enable a suspended sentence to be activated where in the subsequent proceedings an order for conditional discharge was made. The two cases are R v Tarry 54 Cr.App.R 322 and R v Moore [1995] 4 All ER 843. It is right to say that the decision in ex parte Thornton was not cited to the second of those two courts, although by then it had been decided. But we find in the decision of those courts that a person who had been conditionally discharged was not to be regarded as convicted because of the provisions equivalent to the present section 14 of the 2000 Act considerable assistance in resolving the question which is before us.
15. It seems to us that the distinction for which Mr Colman succinctly and persuasively contends between conviction and convicted is simply a distinction which is not recognised by the statute. We agree with the learned judge who rejected that argument and observed that it required delicate dancing on a very small pinhead.
16. We should add also that the relevant question on the form in this case has the prominent heading "Convictions". That, as it seems to us, only confirms that what was being asked was whether there was a conviction and militates against the suggestion that there was a crucial distinction between the heading "conviction" and the question which used the word "convicted".
17. We accept Mr Colman's submission that were the matter ambiguous or free of the clear conclusion to which we have come, there would be sound public policy reasons for enabling the Commissioner to enquire of an applicant about court proceedings which had led to a conditional discharge. We entirely accept that in sensitive employment such as this the Commissioner is entitled to be interested not only in a conviction as defined by section 14 but in the antecedent offence which in this case had been committed. But the remedy for that is in the hands of those who ask questions of the applicant. There was absolutely nothing to prevent employers such as the police, who are exempt for good reason from the Rehabilitation of Offenders Act and have a legitimate interest in asking questions about criminal conduct, in asking properly framed questions. It is perfectly open to such employers to ask a question such as "Have you ever been found guilty of a criminal offence?" or indeed "Have you ever committed a criminal offence?" or, if necessary, "Have you ever appeared in court and been sentenced, including an absolute or conditional discharge, for an offence?" Indeed we observe that, however construed, the question which is asked in this case could not in all cases elicit from the applicant an offence which had in fact been committed and formally recognised and would be very material to a potential employer. A very simple example is that the question as framed could not elicit a caution, albeit that a caution involves a formal admission of a criminal offence before a police officer and would, one would anticipate, be of equal interest to the potential employers.
18. For those reasons we are satisfied that the judge was in this case correct. There was no case to answer that the defendant had made a false representation. Whether she was dishonest or not did not in those circumstances arise; the prosecution could not succeed. The proper order as provided by section 61(3) of the 2003 Act is, we anticipate, that she must from now stand acquitted.
19. I have been asked about reporting restrictions, Mr Colman. This lady stands acquitted, does she not? She ought not therefore I suppose to be identified.
20. MR COLMAN: There is no general principle that an acquitted defendant should not be identified. If she had been acquitted in the crown court there would be no reporting restriction.
21. LORD JUSTICE HUGHES: You are quite right. Yes, of course. The restrictions were there in case there would be a trial. You are quite right there is no reason why it cannot be reported in its correct name.