Making the case for ECRIS: Post “Brexit” sharing of criminal records information between the European Union and United Kingdom

Criminal record information has various uses including, in the detection of crime, as evidence in criminal proceedings, in consideration of an appropriate sentence after conviction and in determining the suitability of an individual for, or providing a bar to, employment. As such this information can have a high value but can also significantly interfere with a person’s right to private and family life under Article 8 of the European Convention on Human Rights. The importance of Article 8 in this area has been increasingly recognised in both domestically and in Strasbourg with such case law making clear the imperative that criminal record information is accurate, retained and disclosed only in proper circumstances and, where appropriate, is capable of being subject to proper challenge. The operation of the European Criminal Records Information System (ECRIS) for exchange of criminal records between member states is explored and the benefits and risks of exchanging criminal records information within such an automated system are identified. The compliance of ECRIS to Article 8 ECHR is considered and suggestions made for future improvements. Evidence is provided that ECRIS constitutes a singular improvement on earlier ad-hoc arrangements and should therefore be retained by the United Kingdom post-Brexit.