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ombudsman news

issue 25

February 2003

disclosure of spent motoring convictions

Some of the insurance complaints we deal with involve the customer's failure to disclose "spent" motoring convictions to their insurer. These cases often reveal customers' confusion about whether they must disclose previous convictions. For example, someone applying for motor insurance six years after they were convicted of a drink-driving offence may consider that, since the endorsement remains on their licence for 11 years, they are obliged to disclose the conviction to the insurer. However, under the Rehabilitation of Offenders Act 1974, the conviction is "spent" after five years.

Nevertheless, some firms ask customers applying for insurance: "Have you or anyone who is to drive the vehicle been convicted of any offence within the last five years or had his licence endorsed within the last 11 years-"

A recent High Court decision (in the case, R v DVLA & Another, ex parte Pearson [2002]) indicates that it is an unlawful breach of statutory duty for firms to rely on endorsements relating to spent convictions in order to disadvantage a driver.

The driver in the case, a Mr Pearson, had a spent conviction for drink-driving, but the endorsement was still on his licence. Some time after his offence and conviction, Mr Pearson trained and qualified as a driver of heavy goods vehicles. Inevitably, however, prospective employers asked to see his licence and they declined to take his job application further after seeing the endorsement.

Mr Pearson's action against the DVLA (Driver and Vehicle Licensing Agency) and the Secretary of State was brought under Article 8 of the Human Rights Act 1998, as he claimed "breach of his right to respect for his private life". He sought to establish that because the endorsement remained on his licence beyond the rehabilitation period, it interfered with his private life (by preventing him from obtaining employment).

The judge dismissed the claim on the basis that Mr Pearson's human rights had not been infringed. However, the judge commented on the purpose of endorsements and, arguably, his comments have implications for insurers. The judge pointed out that the endorsement of a drink-driving conviction remains on a driver's licence for 11 years, for the purpose of any future sentencing, and he stated "I see no reason why, if he had any evidence, a rehabilitated drink driver who is refused a driving job simply by reason of his spent conviction should not be able to maintain an action for breach of statutory duty".

By way of analogy, there seems no reason why a rehabilitated drink-driver, if he had evidence, would not have an equally strong case if he was refused insurance or was given less favourable terms and conditions than other policyholders, simply because of his spent conviction. If firms insist on asking questions about spent convictions, then they must effectively ignore the answers they receive. Otherwise, we are likely to consider they have breached their statutory duty.

Similarly, if a firm cancels the policy of a customer who has a spent conviction (but whose licence is still endorsed), simply because the customer did not disclose the endorsement, then we will uphold the customer's complaint.

Walter Merricks, chief ombudsman

ombudsman news gives general information on the position at the date of publication. It is not a definitive statement of the law, our approach or our procedure.

The illustrative case studies are based broadly on real-life cases, but are not precedents. Individual cases are decided on their own facts.