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Civil Disqualifications Attending Conviction: A Suggested Conceptual Framework*

Published online by Cambridge University Press:  16 January 2009

Antrew Von Hirsch  and
Martin Wasik
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A Person convicted of a crime suffers punishment—a fine, a community sentence, or perhaps a custodial term. In addition to that sanction, however, conviction of the crime may trigger a variety of disqualifications. The offender may be barred from holding public office, or from serving on a jury. He may be precluded from certain types of employment, or be prevented from driving a vehicle. These consequences may considerably restrict the person's prospects for earning a living or his mobility. Yet the visibility of these measures is low: provisions authorising various disqualifications are scattered throughout the statute books, and are not easy to find. While there is now a considerable body of jurisprudence on sentencing, the principles which should inform the proper use of disqualifications have received little serious attention.

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Articles
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The Cambridge Law Journal , Volume 56 , Issue 3 , November 1997 , pp. 599 - 626
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Copyright © Cambridge Law Journal and Contributors 1997

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References

1 See, e.g., Ashworth, A., Sentencing and Criminal Justice, 2nd ed. (1995);Google Scholarvon Hirsch, A., Censure and Sanctions (1993); von Hirsch, A. & Ashworth, A. (eds.), Principled Sentencing (1992).Google Scholar

2 A short discussion can be found in Advisory Council on the Penal System, Non-Custodial and Semi-Custodial Penalties (1970), Chap. 6.

3 Occasionally such consequences appear starkly in sentencing cases. In Lowery (1993) 14 Cr. App. R. (S.) 485 the defendant, in consequence of his conviction for fraud, forfeited his employment, lost his home (which came with the job), and his pension rights were frozen. For the relevance of such consequences to the sentence to be imposed, see Ashworth, op. cit. n. 1 above, pp. 142–144.

4 Walker, N., in Why Punish? (1991), p. 1Google Scholar, comments that “a shared conception of punishment” involves the infliction of something assumed to be unwelcome to the recipient, such as “the inconvenience of a disqualification, the hardship of incarceration … “ etc. In Young (1990) 12 Cr. App. R. (S.) 262 the Court of Appeal said that the offender's disqualification from acting as a company director for two years was “unquestionably a punishment”.

5 Texts on sentencing tend to treat disqualifications as a form of ancillary order, distinct from punishments. See D. Thomas, Current Sentencing Practice, Part, H., and Wasik, M., Emmins on Sentencing, 2nd ed. (1993)Google Scholar, Chap. 10.

6 Sex Offenders Act 1997, Part I. State laws in the US require released sex offenders to register with the police, who may inform local residents of the nature of the offender's crime, and his address. These laws have survived challenge in the courts: see State v. Ward, 123 Wn. 2d. 488 (1994) (Washington) and State v. Noble, 171 Ariz. 171, 829 P. 2d. 1217 (1992) (Arizona).

7 On which see Martin, J.P. and Webster, D., The Social Consequences of Conviction (1971)Google Scholar and Walker, N., Punishment, Danger and Stigma (1980).Google Scholar

8 For detailed reviews see Ryan, H.R.S., “Loss of Civil and Political Rights on Conviction of a Criminal Offence” (1963) 5 Criminal Law Quarterly 470;Google ScholarDamaska, M.R., “Adverse Legal Consequences of Conviction and Their Removal: A Comparative Survey” (1968) 59 Journal of Criminal Law, Criminology and Police Science 347 & 542;CrossRefGoogle Scholar and (Special Issue) “The Collateral Consequences of a Criminal Conviction” (1970) 23 Vanderbilt Law Review 929.Google Scholar

9 Representation of the People Act 1983, s. 3(1).

10 E.g. Constitution of the State of Washington, Art. VI, para. 3.

11 Juries Act 1974, sched. I, part II.

12 Firearms Act 1968, s. 21. We do not address firearms legislation in this article, in view of the extensive literature on this special subject, and the controversy over whether even ordinary, unconvicted citizens should be allowed to possess firearms.

13 R.C.W. 9.92.120; see further Boerner, D., Sentencing in Washington (1985).Google Scholar

14 Road Traffic Offenders Act 1988, s. 34 (obligatory disqualification subject to “special reasons”).

15 Road Traffic Offenders Act 1988, s. 35 (subject to “mitigating grounds”).

16 Currently the Crown Court on sentence may disqualify from driving a person who has used a motor vehicle to commit a non-motoring offence: Powers of Criminal Courts Act 1973, s. 44. The Crime (Sentences) Act 1997 authorises the banning of convicted offenders from driving even where no vehicle was used in commission of the offence. This measure is addressed more fully in Part VI.

17 Road Traffic Offenders Act 1988, s. 36.

18 Company Directors Disqualification Act 1986, s. 1 & s. 2.

19 Public Bodies Corrupt Practices Act 1889, s. 2

20 Licensing Act 1984, s. 100 & s. 101.

21 Gaming Act 1968, s. 24 & s. 25

22 Licensed Premises (Exclusion of Certain Persons) Act 1980, s. 1.

23 Public Order Act 1986, s. 30; Football Spectators Act 1989, part II.

24 Protection of Animals Act 1911, s. 3; Protection of Animals (Amendment) Act 1954, s. 1.

25 See Harris, B., Law and Practice of Disciplinary and Regulatory Proceedings (1995).Google Scholar The leading decisions are Faramus v. Film Artistes' Association [1964] A.C. 925 and Mclnnis v. Onslow Fane and Another [ 1978] 3 All E. R. 211. In the former case the House of Lords upheld the Association's rule prohibiting membership to anyone who had ever been convicted of a non-motoring offence.

26 The Solicitors Act 1974; Courts and Legal Services Act 1990; The Solicitors' (Disciplinary Proceedings) Rules 1994 (S.I. 1994, No. 228). See further Bolton v. Law Society [1994] 2 All E.R. 486.

27 The Medical Act 1983; The General Medical Council (Procedure) Rules 1988 (S.I. 1988, No. 2255). See further Libman v. G.M.C. [1972] 1 All E.R. 798. Other examples are the Nurses, Midwives and Health Visitors Act 1997, the Pharmacy Act 1954 and the Architects Act 1997.

28 Children Act 1989; The Disqualification from Caring for Children Regulations (S.I. 1991, No. 2094).

29 Local Government (Miscellaneous Provisions) Act 1976, as amended by Road Traffic Act 1991, s. 47.

30 Prison Reform Trust, Fair Votes for Prisoners (1996).

30 Prison Reform Trust, Fair Votes for Prisoners (1996).

31 There is also a mass of regulation relating to the disclosure of criminal records to prospective employers for vetting purposes, much of it contained in delegated legislation and Home Office Circulars. For discussion see Hebenton, B. and Thomas, T., Criminal Records (1993)Google Scholar, Chap 5. Part V of the Police Act 1997 now requires a job applicant, on request, to furnish a prospective employer with a “criminal conviction certificate”, to be obtained by the applicant from the Criminal Records Agency on payment of a fee. See further Home Office, On The Record, Cm. 3308, 1996.

32 Powers of Criminal Courts Act 1973, s. 1C. See further M. Wasik, “Discharge Provisions and the Restricted Meaning of'Conviction'“ (forthcoming in the Law Quarterly Review).

33 Rehabilitation of Offenders Act 1974, s. 7(l)(d).

34 See Kogon, B. and Loughery, D., “Sealing and Expungement of Criminal Records” (1970) 61 Journal of Criminal Law, Criminology and Police Science 378CrossRefGoogle Scholar and Leon, J.S., “Post-Sentencing Problems: Some Consequences of a Finding of Guilt in Criminal Cases” (1978) 20 Criminal Law Quarterly 318.Google Scholar

35 Meyers [1996] 1 Cr. App. R (S.) 249 at p. 251.

36 Powers of Criminal Courts Act 1973, s. 15(3) (community service orders); Criminal Justice Act 1982, s. 17(8) (attendance centre orders); Criminal Justice Act 1991, s. 12(3) (curfew orders).

37 See Council of Europe, The Criminal Record and Rehabilitation of Convicted Persons (1984), p. 31: “… if one is to prevent a convicted person from committing further offences, their social reintegration must be made as easy as possible”. The Court of Appeal has held that, in general, when imposing a driving ban the court should have regard to the offender's employment prospects (Weston (1982) 4 Cr. App. R. (S.) 51), and has noted that a long driving ban can be counterproductive, by in effect inviting the offender to commit further offences (Matthews (1987) 9 Cr. App. R. (S.) 1) or otherwise handicapping the offender in trying to rehabilitate himself (West (1986) 8 Cr. App. R. (S.) 266).

38 See, for example, Bennett, T. and Wright, R., Burglars on Burglary (1984), p. 31.Google Scholar

39 See Hood, R., Race and Sentencing (1992).Google Scholar

40 In Cobbey (1993) 14 Cr. App. R. (S.) 82, the Court of Appeal said that the purpose of a company director disqualification order was “…to prevent [the offender] from using a corporate vehicle to defraud others in the way that he has done here, through dishonesty and no doubt also incompetence …”. Contrast the comment cited in n. 4 above.

41 For references, see von Hirsch, A. and Ashworth, A., “Protective Sentencing under Section 2(2)(b): The Criteria for Dangerousness” [1996] Criminal Law Review 175, particularly p. 176 and nn. 5–8.Google Scholar

42 Phillpotts, G.J.O. and Lancucki, L.B., Previous Convictions, Sentence and Reconvictions (1979)Google Scholar, Home Office Research Study No. 53.

43 See Feeley, M. and Simon, J., “Actuarial Justice: The Emerging New Criminal Law” in Nelken, D. (ed.), The Futures of Criminology (1994), p. 173.Google Scholar

44 Though see 5 below.

45 For application of this argument to criminal sanctions, see Hart, H.L.A., Punishment and Responsibility (1968), Chaps. 1 & 7.Google Scholar

46 English sentencing law thus generally calls for observance of proportionality in deciding the severity of sentence; see Criminal Justice Act 1991, ss. 2(2)(a) and 6(2)(b). An exception is made under s. 2(2)(b) of the Act permitting longer-than-proportionate sentences but only in cases of special danger rather than of ordinary risks of recidivism. See von Hirsch & Ashworth op. cit. n. 41 above. For more on the role of proportionality in punishment, and on the extent to which risk may be considered in deciding penal sanctions, see pp. 611–612 and 616–617 below at nn. 51–53 and 67–70 respectively.

47 See the comments of SirThomas Bingham, M.R. in Bolton v. Law Society [1994]Google Scholar 2 All E.R. 486, at p. 492, that the reasons for disqualifying a solicitor include that of denying the opportunity of re-offending.

48 For example, under the Protection of Animals (Amendment) Act 1954, s. 1, disqualification from keeping animals may relate to all animals, or animals of any particular kind, and may be “for such period as the court thinks fit”. See also n. 99 below.

49 For the relevant cases, see D. Thomas, Current Sentencing Practice, Part H.

50 In recent years there have been examples of judges being convicted of drunk-driving who have not been required to leave office.

51 See von Hirsch op. cit. n. 1, Chap. 2. For the relative weight that should be given to desert against other factors in sentencing, see ibid, Chap. 6; see also pp. 616–618 below.

52 Thus in Buckley (1988) 10 Cr. App. R. (S.) 477 the Court of Appeal explained that disqualifying a driver until he re-takes and passes the driving test “…is not to be exercised as an additional punishment…”.

53 Von Hirsch op. cit., n. 1; M. Wasik and A. von Hirsch, “Section 29 Revised: Previous Convictions in Sentencing” [1994] Criminal Law Review 409.

54 (1994) 15 Cr. App. R. (S.) 445. These periods are the same as those applicable in civil proceedings for disqualification: In Re Sevenoaks Stationers (Retail) Ltd. [1991] Ch. 164.

55 Harris, D.J., O'Boyle, M. and Warbrick, C., The Law of the European Convention on Human Rights (1995), pp. 11–12.Google Scholar This notion of “non-excess” is one aspect of the suitability of means to ends. The other aspect is fitness: the means pursued must be ones that help promote the ends in view.

56 See Part IV, 3 (special vulnerability), above.

57 See Part IV, 4.

58 This is quite different from barring the prospective solicitor who cannot pass his examinations. Being a solicitor requires (and is widely understood as requiring) certain skills, and so it is no “trap” to deny access to the profession to one whose examination failure demonstrates a lack of those skills.

59 [1976] 1 W.L.R. 1052.

60 At pp. 1057–1058.

61 See Ashworth op. cit., n. 1, Chap. 9.

62 See Criminal Justice Act 1991, s. 6.

63 The statute and its aims are described in J. Feinberg, “The Expressive Function of Punishment”, in Feinberg, J. (ed.), Doing and Deserving (1970), pp. 95–110.Google Scholar

64 The seeds of the proposal can be found in the Report of the Advisory Council on the Penal System (1970), at p. 43.

65 Crime (Sentences) Act 1997, s. 39: “…[T]he court by or before which a person is convicted of an offence may, in addition to or instead of dealing with him in any other way, order him to be disqualified, for such period as it thinks fit, for [sic] holding or obtaining a driving licence.”

66 A distinction needs to be drawn between the ancillary sentencing powers which we are describing and other sentencing powers, such as a forfeiture order made under the Powers of Criminal Courts Act 1973, s. 43. That section enables the court to deprive the offender of his rights in property which he used in the commission of the offence, and it is properly regarded as a financial penalty—a fine in specie. See Buddo (1982) 4 Cr. App R. (S.) 268. Also distinct are measures designed to confiscate the accumulated profits of offending; see, e.g., Drug Trafficking Act 1994.

67 See von Hirsch op. cit. n. 1, Chaps. 2 & 7.

68 Ibid, Chap. 7; see also Wasik, M. and von Hirsch, A., “Non-custodial Penalties and the Principles of Desert” [1988]Google ScholarCriminal Law Review 555.

69 For discussion of such “band” approaches, see von Hirsch op. cit. n. 1, Chap. 6; and from a different perspective, see Tonry, M., Sentencing Matters (1996)Google Scholar, Chaps. 1 & 8.

70 For description and analysis of such views, see von Hirsch op. cit. n. 1, Chap. 6.

71 For a thoughtful analysis of the events leading to abolition, see Windlesham, Lord, Responses to Crime, Vol. 3 (1996), Chap. 1.Google Scholar

72 Criminal Justice Act 1991, s. 18.

73 The Powers of Criminal Courts Act 1973, s. 2(1) indicates that a probation order is an appropriate sentence where supervision will assist in “securing the rehabilitation of the offender” or “protecting the public from harm from him or preventing the commission by him of further offences”.

74 Criminal Justice Act 1991, s. 6.

75 Ibid; Powers of Criminal Courts Act 1973, s. 3 and Sched. 1A. See also Ashworth op. cit. n. 1, Chap. 10.

76 .Sometimes, the concern about avoiding counter-productiveness has to be disregarded because of the absence of alternatives: the prison appears to have criminogenic effects for some types of offenders, but there appears to be no other acceptable sanctions suited to the most serious crimes (see von Hirsch, A., Doing Justice (1976)Google Scholar, Chap 13). We are speaking here, however, of noncustodial sanctions, where alternatives do exist.

77 Note, however, the unadopted suggestion of the Advisory Council on the Penal System (1970) at p. 45 that courts might be given power to disqualify offenders from driving at weekends.

78 Indeed, the new law expressly expands the power of the police to stop motorists. Such interventions would be more problematic than routine stops of drivers to administer breathalyser tests—a measure addressed to the the special dangers of driving under the influence of alcohol. Here, there would be no special danger to be dealt with, and the only reasons for the stops would be to enforce a sanction that could be replaced by other, more suitable and easily enforced ones.

79 See Part III, above.

80 The measure is also counter-productive in the sense that it is bound to result in more unlicensed (and thus uninsured) drivers on the road.

81 See Part III, above. See also Feinberg's discussion of New York's driving ban against convicted Communists, n. 63 above. The populist law-and-order stance, which this proposal exemplifies, is in part characterised by giving offenders this reduced status: convicts are to be dealt with as virtually a species apart, with whom ordinary persons need have no sympathy. Deprivations such as these would serve as a mark of such persons' separate and inferior status. See further Garland, D., “The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society” (1996) 36 British Journal of Criminology 445, at pp. 459–461.Google Scholar

82 See, Hood, R., Sentencing the Motoring Offender (1972), at p. 80 et. seq. See also p. 602 above, at nn. 14–17.Google Scholar

83 See p. 618 above, at n. 77.

84 See the discussion on pp. 617–618 above, at nn. 73–75.

85 This might be true, for example, if the duration of the ban is based on a cumulative score which depends less on the current offence than on the driver's previous record of bad driving.

86 See Part IV, 3 & 4.

87 Criminal Justice Act 1991, s. 6; see also Ashworth op. cit. n. 1, Chap. 10.

88 The present Home Secretary has suggested the possibility of imposing night-time curfews on certain young children.

89 See Part IV, 3 & 4.

90 See Dworkin, R., Taking Rights Seriously (1977)Google Scholar, Chap 7; but see Raz, J., The Morality of Freedom (1986)Google Scholar, Chaps. 7 & 8.

91 “ For more discussion on why such risk considerations should be seen as societal interests, rather than rights-based claims that compete with a person's right of liberty of movement, see von Hirsch op. cit. n. 1, p. 51n.

92 See ibid. pp. 49–50, for discussion of the status of risks of extraordinary gravity.

93 “ See, Hirsch, vonDoing Justice (1976), p. 130.Google Scholar Pre-trial detention to prevent bail crimes, however, is considerably more controversial—precisely because such restraint is not necessary for preserving a system of trials. A corollary to the power of pre-trial detention is the power to restrict the defendant's movements in the community before trial, in lieu of confining him. Conditions restricting liberty, such as a curfew or a requirement not to enter a certain area, may thus be imposed as a condition of bail: Bail Act 1976, Sched I. As measures based on the pre-trial dentention power, however, these conditions must terminate on acquittal even if there is reason to think that the person still would represent a risk. See also A. Samuels, “No Driving as a Requirement or Condition of Bail” [1988] Criminal Law Review 739.

94 See von Hirsch op. cit. n. 1, and pp. 616–617 above at nn. 67–70.

95 Indeed, confining an adult merely on grounds of risk would raise serious questions under Article 5 of the European Convention on Human Rights.

96 See Part IV, 3 & 4, above.

97 See Part III, above.

98 The E.C. Charter of the Fundamental Social Rights of Workers, Title I, para. 4 states that “Every individual shall be free to choose and engage in an occupation according to the regulations governing each occupation.” See also the International Covenant on Economic, Social and Cultural Rights (1966), Article 6: “The States Parties to the present Covenant recognise the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

99 ” Consider the English law on the keeping of domestic animals. At present, a person may keep domestic animals without a licence, if not in the business of doing so (say, as operator of a kennel or riding establishment). The only ground for barring such a person from keeping animals is a conviction for cruelty or mistreatment of animals. However, it would not seem problematic in principle to ban a person from keeping an animal without first requiring a conviction. Dog breeders may lose their licence to operate kennels if inspection by the local authority shows that the dogs are cruelly treated, without the need to obtain a conviction. Conceivably, such a rule might reasonably be extended to the non-commercial keeping of animals.

100 In Part IV, 3 & 4.

101 See Part VII.

102 But see the one type of exception discussed in Part IV, 5.

103 See Part III.

104 See Part VI, 2.

105 In France and in the Netherlands deprivation of civil rights, including the right to vote, may be imposed upon a convicted offender at the discretion of the sentencing judge: Prison Reform Trust (1996).

106 Company Directors Disqualification Act 1986, s. 2(1).

107 It is only necessary that the offence “…must have some relevant factual connection with the management of the company”: Goodman (1992) 14 Cr. App. R. (S.) 147. There is no need to show actual misconduct in the company's affairs: Georgiou (1988) 10 Cr. App. R. (S.) 137.

108 See Part IV, 3 & 4.

109 For the reasons set out in Part V.

110 (1994) 15 Cr. App. R. (S.) 445; see pp. 612–614 above.

111 See, however, the provisions of the US Federal Sentencing Guidelines, para. 5F5.5, authorising a variety df “occupational restrictions”. See also the unadopted suggestion of the Advisory Council on the Penal System (1970), at p. 46, that sentencers should have power to pass a “prohibited employment order”.

112 Craig, P.P., Administrative Law, 3rd ed. (1994), Part II, especially pp. 317–320.Google Scholar

113 Per Lord Goddard, C.J. in Re A Solicitor [1956] 3 All E. R. 516 at p. 517Google Scholar, ringingly endorsed by Sir Thomas Bingham, M.R. in Bolton v. Law Society [1994] 2 All E. R. 486 at p. 490.Google Scholar

114 See Le Compte, Van Leuwen and De Meyere v. Belgium (1982) 5 E.H.R.R. 183 and Konig v. Germany (1984) 2 E.H.R.R. 170, both cases of doctors disqualified from practice.

115 See further Harris op. cit. n. 25, Chap 2.

116 “Outside…areas of statutory intervention…an employer is free to refuse to hire a person for any reason, no matter how capricious, or for no reason at all.”: Deakin, S. and Morris, G.S., Labour Law (1995), p. 136.Google Scholar

117 See ibid., p. 422: “Dismissal for a conviction…will almost certainly be a potentially fair reason.” In Shan v. Croydon Area Health Authority (1975) 13630/75/D (cited in Whincup, M., The Right to Dismiss (1982), p. 94)Google Scholar, the defendant was a doctor, who was convicted of stealing a bag from a shop. She was fined §50. Dismissal from her employment was upheld.

118 Several Human Rights Codes in Canadian provinces prohibited the refusal of employment, or the refusal of association membership, where the applicant's conviction did not “relate to the occupation, employment or membership”: Human Rights Code of British Columbia, ss. 8 & 9, discussed by Leon op. cit. n. 34, pp. 326–327. Unfortunately, even this basic step has not been adopted in the Canadian Charter of Civil Rights and Freedoms.

119 Rehabilitation of Offenders Act 1974, s. 4. There are, however, numerous exceptional employments where convictions must be revealed although spent; see Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (S.I. 1975, No. 1023). See further Torr v. British Railways Board [1977] I.R.L.R. 184.