To what extent do you think Lord Kerr was exercising the Character Based Approach to ethics in his dissent to
the case of Lorraine Gallagher v Secretary of State for the Home Department [2019] UKSC 3? Do you agree with
the outcome of this case?
1
In order to assess the outcome of Lorraine Gallagher v Secretary of State for the Home Department, we
must first understand what the Character Based Approach is. According to J. Kempton, the Character
Based Approach is ‘...the innate moral compass [...] to act ethically and honourably’ which tells us it is
pertinent to an individual’s virtue rather than a set of written rules1. The general argument is that Lord
Kerr was exercising both the Character based approach as well as the Rule based approach; ‘...the right
ethical response was established by strict adherence to a detailed set of rules.’2; particularly when
considering the nature of the convictions and the reasoning why the appeal was dismissed. Therefore, the
general conclusion is that the outcome of this case was quite fair considering the importance of disclosure
of criminal records regarding employment and safety, particularly when regarding the fact that the
appellants’ crimes were sufficient enough for an enhanced check. But, the fact that they had not continued
to offend after that can be seen as an effective rehabilitation or deterrent and would not need further
punishment.
The appellant named ‘P’ had previously received a caution in 1999 regarding theft of a sandwich; three
months later she was convicted for the theft of a book. Upon receiving her conditional discharge, she had
not continued to offend, but was not able to find employment on the assumption of her disclosure of her
convictions on job applications.
The appellant named ‘W’ was convicted of assault occasioning ABH in 1982, he was 16 years old at the
time. He too received a conditional discharge and was unable to find employment in the field he was
qualified in, for the fact that he would have to disclose his convictions and would face prejudice (despite
the fact that it had been 31 years later).
The appellant named ‘G’ was arrested at 13 in 2006 for sexual assault but received two police reprimands
in respect of the facts of the crime. He had not reoffended since, but lost a potential job offer due to his
criminal record being disclosed in 2011.
Lorraine Gallagher was convicted in 1996 on account of driving without wearing a seatbelt and for
carrying a child under 14 years old without a seatbelt. In 1998 she was convicted on two counts of the
same offence and was fined on both accounts. She did not reoffend after that, but in 2013 did not disclose
all of her convictions honestly on an employment application - it was withdrawn on these grounds.
Within the case, it was decided that the multiple convictions and warnings on the appellants record was in
accordance with the law3, for the purposes of the European Convention of human Rights and the Human
Rights Act 1998, both relating to the right to private and family life4 5. This is because of a particular rule
when regarding multiple convictions in that they are the exception when it comes to disclosure (especially
when issued to young offenders). In that circumstance, it would be reasonable to believe that a Rule
Based approach was taken in order to come to the final decision; D. Espada even goes as far as to say that
1
Jacqueline Kempton, SQE Ethics and Professional Conduct, (University of Law Publishing Ltd 2021) p3
2
Ibid p3
3
Lorraine Gallagher v Secretary of State for the Home Department [2019] UKSC 3
4
European Convention on Human Rights, Art. 8
5
Human Rights Act 1998, s 8
the case of Lorraine Gallagher v Secretary of State for the Home Department [2019] UKSC 3? Do you agree with
the outcome of this case?
1
In order to assess the outcome of Lorraine Gallagher v Secretary of State for the Home Department, we
must first understand what the Character Based Approach is. According to J. Kempton, the Character
Based Approach is ‘...the innate moral compass [...] to act ethically and honourably’ which tells us it is
pertinent to an individual’s virtue rather than a set of written rules1. The general argument is that Lord
Kerr was exercising both the Character based approach as well as the Rule based approach; ‘...the right
ethical response was established by strict adherence to a detailed set of rules.’2; particularly when
considering the nature of the convictions and the reasoning why the appeal was dismissed. Therefore, the
general conclusion is that the outcome of this case was quite fair considering the importance of disclosure
of criminal records regarding employment and safety, particularly when regarding the fact that the
appellants’ crimes were sufficient enough for an enhanced check. But, the fact that they had not continued
to offend after that can be seen as an effective rehabilitation or deterrent and would not need further
punishment.
The appellant named ‘P’ had previously received a caution in 1999 regarding theft of a sandwich; three
months later she was convicted for the theft of a book. Upon receiving her conditional discharge, she had
not continued to offend, but was not able to find employment on the assumption of her disclosure of her
convictions on job applications.
The appellant named ‘W’ was convicted of assault occasioning ABH in 1982, he was 16 years old at the
time. He too received a conditional discharge and was unable to find employment in the field he was
qualified in, for the fact that he would have to disclose his convictions and would face prejudice (despite
the fact that it had been 31 years later).
The appellant named ‘G’ was arrested at 13 in 2006 for sexual assault but received two police reprimands
in respect of the facts of the crime. He had not reoffended since, but lost a potential job offer due to his
criminal record being disclosed in 2011.
Lorraine Gallagher was convicted in 1996 on account of driving without wearing a seatbelt and for
carrying a child under 14 years old without a seatbelt. In 1998 she was convicted on two counts of the
same offence and was fined on both accounts. She did not reoffend after that, but in 2013 did not disclose
all of her convictions honestly on an employment application - it was withdrawn on these grounds.
Within the case, it was decided that the multiple convictions and warnings on the appellants record was in
accordance with the law3, for the purposes of the European Convention of human Rights and the Human
Rights Act 1998, both relating to the right to private and family life4 5. This is because of a particular rule
when regarding multiple convictions in that they are the exception when it comes to disclosure (especially
when issued to young offenders). In that circumstance, it would be reasonable to believe that a Rule
Based approach was taken in order to come to the final decision; D. Espada even goes as far as to say that
1
Jacqueline Kempton, SQE Ethics and Professional Conduct, (University of Law Publishing Ltd 2021) p3
2
Ibid p3
3
Lorraine Gallagher v Secretary of State for the Home Department [2019] UKSC 3
4
European Convention on Human Rights, Art. 8
5
Human Rights Act 1998, s 8
