A v B

Under section 7(3) of the Rehabilitation of Offenders Act 1974, evidence of a spent conviction may be admitted only where justice cannot be done without it. Relevance is necessary but insufficient. The tribunal must assess the conviction’s real importance to the issues and balance that importance against unfair prejudice to the rehabilitated person.

The provision does not confer a conventional residual discretion once that question is answered. If a fair hearing can proceed without the evidence, it must be excluded; if justice cannot be done without it, it must be admitted. A spent conviction may be sufficiently important where decision-makers’ knowledge of it provides a material alternative explanation for alleged discriminatory treatment.

A, a former employee of B, brought claims for unfair and wrongful dismissal and for race discrimination, victimisation and harassment. B wished to rely at the substantive employment tribunal hearing on A’s spent conviction for kerb-crawling. It contended that managers’ knowledge of the conviction could explain any differential treatment and was relevant to A’s account of events.

The employment judge ruled that the evidence was admissible under section 7(3) of the Rehabilitation of Offenders Act 1974. A appealed, principally contending that the judge had failed properly to balance relevance against prejudice. The central issue was whether justice could be done without admitting the spent-conviction evidence.

1. Appeal dismissed. The employment judge had accurately directed herself on section 7(3) of the Rehabilitation of Offenders Act 1974. The statutory question was whether justice could be done without the evidence, not whether there remained a free-standing discretion to exclude evidence after that condition was satisfied.

2. The judge was required to preserve a fair balance between the parties’ interests. Relevance was the initial requirement, but she also had to evaluate the practical importance of the conviction to a fair determination and the prejudice caused by admitting it. The approach drawn from Thomas v Commissioner of Police of the Metropolis [1997] QB 813 was correctly applied.

3. The evidence was materially relevant to the discrimination claims. B was entitled to advance the case that any differential treatment resulted from managers’ knowledge of the conviction, rather than A’s ethnicity. Excluding that evidence could prevent the relevant witnesses from giving a full account and prevent the tribunal from fairly determining why the disputed events occurred. The employment judge’s language showed that she regarded the evidence as necessary to a fair trial, rather than merely relevant.

4. The alleged risk that the tribunal would give disproportionate weight to a sexual conviction was neither advanced before the employment judge as the relevant prejudice nor a basis for allowing the appeal. An employment tribunal comprised legal and industrial members could be expected to assess the evidence properly. The other criticisms disclosed no material error of law. Once the statutory condition was met, admission was also consistent with the fair-hearing rights protected by Article 6 of the European Convention on Human Rights.

• Employment Appeal Tribunal: appeal dismissed. The ruling of the employment judge admitting evidence of the spent conviction was upheld.
• Employment Tribunal: the employment judge ruled that justice could not be done without admitting the spent-conviction evidence under section 7(3) of the Rehabilitation of Offenders Act 1974.