Wayne Truter & Anor v Ministry of Justice

Section 4(2) of the Rehabilitation of Offenders Act 1974 does not prohibit HMPPS from using spent convictions when completing an actuarial risk assessment. The subsection concerns questions seeking information from a person, and protects the person answering from adverse legal consequences if a spent conviction is not disclosed. It does not prevent officials from using conviction data already held by HMPPS as inputs to the OASys Sexual Reoffending Predictor.

An OSP assessment is an administrative task, not “proceedings before a judicial authority” within section 4(6). The claimants’ proposed interpretation would therefore fail. Their claims were dismissed.

Two serving prisoners brought claims against the Ministry of Justice alleging that HMPPS acted unlawfully by including spent convictions in the OASys Sexual Reoffending Predictor. The claims were framed as private law claims for misfeasance in public office.

A preliminary issue concerned whether the OSP Guidance was lawful in stating that it was irrelevant whether a conviction was spent under the Rehabilitation of Offenders Act 1974. The issue was whether section 4(2) prohibited HMPPS from taking spent convictions into account when calculating an offender’s actuarial risk score.

1. Claims dismissed. The court held that the inclusion of spent convictions in the OSP assessment was not contrary to section 4(2) of the Rehabilitation of Offenders Act 1974.
2. The general statement in section 4(1), that a rehabilitated person is to be treated for all purposes in law as someone who had not committed or been convicted of the offence, is a principle underpinning the specific rules in section 4(1)(a) and (b), 4(2) and 4(3). It is not a gateway condition which must be satisfied before those separate rules apply. The wording and structure of section 4 support that conclusion.
3. Section 4(2) provides that, in law, a question about spent convictions is to be treated as not relating to spent convictions, and permits the answer to be framed accordingly. The contrast between “shall” and “may” shows that the subsection does not prohibit the person answering from referring to spent convictions. It protects the person who does not disclose them from liability or legal prejudice.
4. Section 4(2) is directed to one person disclosing information to another in answer to a question. HMPPS personnel were instead using conviction information already in HMPPS’s possession to enter data into an actuarial tool. The operation of the subsection could not depend on whether the data-entry instructions were expressed as questions.
5. The OSP assessment was not “proceedings before a judicial authority” under section 4(6). Although the assessment may contribute to decisions affecting an offender’s prison management, release or eligibility for measures, it does not directly determine legal rights. It is an administrative task, involving no proceedings before anyone and no receipt of evidence in the statutory sense. The court distinguished the materially different licensing decision considered in Hussain v London Borough of Waltham Forest [2021] 1 WLR 922.
6. The arguments under section 7(3), including the statutory safety valve and procedural fairness considerations discussed in Dickinson v Yates 1986 WL 406872, were unnecessary to decide. The court observed that the difficulty of applying the procedural safeguards discussed in Adamson v Waveney District Council [1997] 2 All ER 898 and R v Hastings Magistrates Court ex parte McSpirit (1998) 162 JP 44 to the OSP process further suggested that treating it as section 4(1) proceedings would be artificial.