MR JUSTICE WARBY
Approved Judgment
NT1 & NT2 v Google LLC
Wales on the one hand and Scotland on the other. For the purposes of this case, it is
sufficient to note the following.
17.
(1)
The sentence imposed on NT1 was one of four years’ imprisonment. Under the
law of England & Wales as it stood until 10 March 2014, any sentence of more
than 30 months’ imprisonment was excluded altogether from rehabilitation.
Amendments made by s 139 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2012 (“LASPO”) enlarged the range of sentences that could
become spent, embracing any sentence of 48 months or less. The amendments
provided for a sentence of between 30 and 48 months to become spent after 7
years.
(2)
The sentence imposed on NT2 was one of six months’ imprisonment. Such a
sentence was always capable of becoming spent. Until 10 March 2014, the
rehabilitation period for such a sentence was 7 years. The amendments
introduced by LASPO reduced that period to 2 years.
(3)
LASPO s 141(2) provided that the 1974 Act applies “as if [these] amendments
… had always had effect”. The consequence is that some old convictions,
including those of NT1 and NT2, are now to be treated as having become
spent before the amendment was made.
Section 4 of the 1974 Act is headed “Effect of rehabilitation” and begins as follows:“(1) Subject to sections 7 and 8 below, a person who has
become a rehabilitated person for the purposes of this Act in
respect of a conviction shall be treated for all purposes in law
as a person who has not committed or been charged with or
prosecuted for or convicted of or sentenced for the offence or
offences which were the subject of that conviction …”
The emphasis is mine. It highlights wording of exceptional breadth that might at first
sight be thought to provide a complete and ready answer to these claims. But nobody
suggests that this is its effect. All parties have treated s 4(1) as embodying a legal
policy to which the Court should have regard in resolving the issues before it. The
weight to be given to that policy generally, and in this case in particular, is
controversial. I shall come to the arguments of the parties and the ICO in these
respects.
18.
But I should mention at this stage a point made by Mr Tomlinson, which is that
evidence to prove his clients’ offending, conviction and sentence is only before the
Court by way of exception to a general rule against the admission of such evidence.
Section 4(1) of the 1974 Act goes on to set out a conditional prohibition on the
admission before a judicial authority of any “evidence … to prove that … [a] person
has committed or been charged with or prosecuted for or convicted of or sentenced for
any offence which was the subject of a spent conviction” and on any question being
asked which cannot be answered without acknowledging or referring to such a
conviction. This prohibition is subject to s 7. It does not apply to proceedings in
which the person is a party or witness, if he consents to the admission of the evidence
(s 7(2) (f)). Nor does it apply to a case in which the Court is satisfied that justice
cannot be done except by admitting such evidence (s 7(3)). Mr Tomlinson’s analysis