Wayne Truter & Anor v Ministry of Justice

The claimants, prisoners at HMP Littlehey, challenged the Ministry of Justice guidance that OASys Sexual reoffending Predictor (OSP) assessments may take into account convictions that are spent under the Rehabilitation of Offenders Act 1974. The claimants contended that section 4(2) of the 1974 Act prevented HMPPS practitioners from treating spent convictions as relevant when answering OSP questions and that the Guidance was therefore unlawful.

The court held that section 4(2) does not operate as a prohibition on the use of spent convictions in completing an actuarial risk‑assessment tool and, read in context, does not impose a duty on the person questioned to exclude spent convictions; it simply permits answers to be framed as if spent convictions did not exist and protects a person from adverse legal consequences if they do so. The judge also held that the OSP assessment is an administrative process and not "proceedings before a judicial authority" within the meaning of section 4(6), so that the section 7(3) safety valve need not be addressed. For these reasons the claims for misfeasance in public office were dismissed.

Background and parties:

• The two claimants, prisoners at HMP Littlehey, issued claims in 2023 challenging the Ministry of Justice's Guidance on the OASys Sexual reoffending Predictor (OSP). The OSP is an actuarial tool used by His Majesty’s Prison and Probation Service (HMPPS) to help predict the likelihood of further sexual offending and to inform management, programme allocation and parole-related decisions.
• The claimants sought to establish as a matter of law that the Defendant’s Guidance (which stated that it is irrelevant whether a conviction is spent under the Rehabilitation of Offenders Act 1974) was unlawful because it required HMPPS to take spent convictions into account when completing OSP assessments. The pleaded cause of action was misfeasance in public office; a preliminary legal issue was ordered.

Issues framed by the court:

• Whether section 4(2) of the Rehabilitation of Offenders Act 1974 precludes HMPPS practitioners from treating spent convictions as relevant when answering the questions that underpin the OSP calculation.
• Whether the general statement in section 4(1) operates as a gateway condition limiting the application of section 4(2) to "purposes in law" so that the OSP could be excluded from section 4 entirely.
• Whether the carrying out of an OSP assessment amounts to "proceedings before a judicial authority" under section 4(6), such that the section 7(3) safety valve might permit reliance on spent convictions.

Court’s reasoning (concise):

• The judge rejected the claimants’ contention that the permissive language of section 4(2) should be construed as imposing a duty to exclude spent convictions. Read in context, section 4(2) allows questions to be treated as not relating to spent convictions and protects a person who answers on that basis; it does not forbid another person from referring to spent convictions when answering.
• The judge analysed the structure of section 4 and concluded that the "general statement" in section 4(1) is not a separate gateway precondition which must be satisfied before sections 4(2) and 4(3) apply. Rather, the subsection is the general principle giving effect to the specific rules that follow; those rules are limited in scope.
• Even if section 4(2) were engaged, it does not prevent HMPPS personnel from using spent conviction information to populate an actuarial tool: the OSP input process uses information already in HMPPS records and is not simply a person answering a question with adverse legal consequences.
• On statutory construction of section 4(6) and the context of the 1974 Act, the judge held that an OSP assessment is an administrative task, not "proceedings before a judicial authority". The OSP does not involve proceedings before or "before" a tribunal or other decision‑maker in the sense envisaged by section 4(6), nor does it involve receiving evidence in the manner required for that subsection to apply.

Relief and result:

• The preliminary issue was decided against the claimants. The claims for misfeasance in public office were dismissed because the lawfulness of the Guidance was upheld: the Guidance’s statement that it is irrelevant whether a conviction is spent did not make the practice unlawful and the OSP may lawfully take spent convictions into account for the stated risk‑assessment purpose.

Contextual note:

The court commented on the limited and specific protections of the Rehabilitation of Offenders Act and noted the practical difficulties of applying some procedural safeguards in contexts such as automated actuarial risk assessments.

This was a first instance judgment: the claims are dismissed. The court held that section 4(2) of the Rehabilitation of Offenders Act 1974 does not prohibit HMPPS personnel from taking spent convictions into account when completing the OSP; section 4(2) permits persons to answer as if convictions were spent but does not create a duty to exclude them. The OSP assessment was an administrative process and not "proceedings before a judicial authority" under section 4(6), so the claimants’ challenge to the Guidance failed.

Claims were issued in mid and late 2023 in the Birmingham District Registry by prisoners at HMP Littlehey. On 12 January 2024 District Judge Rich ordered a preliminary issue in Mr Amponsah’s case. Four other claims were stayed; the stay in Mr Truter’s case was lifted by the High Court on 4 June 2024. The preliminary issue was heard on 12 and 13 June 2024 before Mr Justice Linden at the Royal Courts of Justice. No appeal history is stated in the judgment.