Patel, R. v

A conditional discharge is deemed not to be a conviction outside the original proceedings and any breach proceedings. An employment question asking whether an applicant has ever been convicted concerns whether there is a conviction. It does not ask the distinct question whether the applicant has ever been found guilty.

The wording of an exempt employer’s form cannot displace that statutory effect. The employer may instead ask a properly framed question about findings of guilt, offending or previous court appearances. Section 1(4) of the Rehabilitation of Offenders Act 1974 qualifies the deeming rule only for that Act’s purposes.

The Crown sought leave under section 58 of the Criminal Justice Act 2003 to appeal a Crown Court ruling that the respondent had no case to answer on an indictment under section 16 of the Theft Act 1968.

When applying in 2003 for civilian employment with the Metropolitan Police, the respondent answered “No” to a form headed Convictions, which asked whether she had ever been convicted of an offence. Nine years earlier, when aged 17, she had received a 12-month conditional discharge for shoplifting.

The Crown contended that her answer was a false representation because she had historically been convicted. The issue was whether section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 made the answer true despite the employer’s exemption from the rehabilitation legislation.

1. Leave was granted, but the Crown appeal failed. The trial judge correctly ruled that there was no case to answer. Under section 61(3) of the Criminal Justice Act 2003, the respondent was to stand acquitted.

2. Section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 deems a conviction followed by an absolute or conditional discharge not to be a conviction for every purpose except the proceedings in which the order was made and later breach proceedings. By virtue of the transitional provision, that effect also covered the respondent’s earlier conditional discharge. A later employment application was outside both exceptions.

3. The form’s use of the words ever been convicted did not create a separate category from a conviction. Its heading, Convictions, confirmed that it asked whether a conviction existed. The respondent’s answer was therefore not a false representation. The prosecution under section 16 could not succeed, and dishonesty did not arise.

4. R v Home Secretary ex parte Thornton [1986] 2 All ER 641 was distinguishable. It concerned a disciplinary rule expressed in terms of a person being found guilty, rather than whether that person had been convicted. The court accepted that a conditional discharge does not erase the fact of guilt, but that was not what this form asked.

5. Section 1(4) of the Rehabilitation of Offenders Act 1974 operates for that Act’s purposes and does not generally qualify section 14(1). Although a police employer may legitimately seek information about criminal conduct, it must ask a question that obtains it, such as one about findings of guilt or prior sentencing including conditional discharges.

• Court of Appeal (Criminal Division): The Crown was granted leave under section 58 of the Criminal Justice Act 2003, but its appeal against the no-case ruling was dismissed. The respondent was to stand acquitted under section 61(3).

• Crown Court: The trial judge ruled that there was no case to answer on the allegation of obtaining a pecuniary advantage by deception.