Article 8 challenge to enhanced criminal records regime fails at first instance – Robin Hopkins
16 February 2012
R (T) v (1) Chief Constable of Greater Manchester Police, (2) Secretary of State for the Home Department (Secretary of State for Justice an interested party)  EWHC 147 (Admin) – read judgment.
In July 2002, the Claimant was 11 years old. He received a warning (a private procedure, under the Crime and Disorder Act 1998) from Greater Manchester Police for the theft of two bicycles. His subsequent conduct was apparently exemplary. By section 113B of the Police Act 1997, Enhanced Criminal Record Certificates (ECRCs) must contain all convictions, cautions and warnings. The Claimant, a 20-year old student applying for a sports studies course, obtained his ECRC in December 2010. It contained details of the bike theft warning.
He argued that the inflexible requirement under the 1997 Act for all convictions, cautions and warnings to be disclosed in ECRCs was incompatible with Article 8 of the ECHR.
With overt reluctance, Kenneth Parker J dismissed the claim. His decision was based on the analysis of R (L) v Commissioner of Police for the Metropolis  UKSC 3  1 AC 410, where the majority of the Supreme Court decided that the disclosure of “information” (under s. 115(6) of the 1997 Act) potentially breached Article 8. Such a breach would be justified only if (a) the information is relevant to the decision for which the ECRC is required, and (b) disclosure is proportionate, taking into account factors such as the gravity of the material, the reliability of the information on which it was based, the relevance of the material to the particular job application, the period since the relevant events and the impact on the applicant of including the material in the ECRC.
The disclosure of “information” was, however, a separate matter from the disclosure of convictions, cautions and warnings. It was clear from L that, insofar as it required the latter, the 1997 Act was not open to challenge under Article 8.
Kenneth Parker J had great sympathy with the Claimant’s analogy with R (F) v Justice Secretary  UKSC 17;  1 AC 331, in which the subjecting of the claimants to indefinite reporting requirements under the Sexual Offences Act 2003 was found to violate their rights under Article 8. As in F, the provisions under challenge in the present case provided for no reviews, and no exceptions. This caused the learned judge great concern. He observed that:
… a system that allows no exceptions imposes a very heavy cost in terms of effect on the fundamental rights protected by Article 8 ECHR. I am not persuaded that the marginal benefit that a system which admits no exceptions brings to, admittedly important, competing interests is justified as a matter of proportionality when the serious detrimental effects of such a system, particularly on child offenders, are weighed in the balance. A system that permitted exceptions would probably be more prone to error, but only marginally so if the criteria for review were themselves conservative and risk averse. The consequential improvement to the protection of Article 8 rights on the other hand, would be likely to be substantial.
Nonetheless, his hands were tied by L: the requirement to disclose convictions, cautions and warnings did not violate Article 8. It may be a “bright line rule”, and arguably a harsh one, but the law has condoned such rules in other circumstances (see for example R (Animal Defenders International) v Secretary of State for Culture, Media and Sport  1 AC).
The Claimant also sought to challenge the lawfulness of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 – which removes, in certain circumstances, the protections concerning spent convictions. This claim failed for the same reasons. Kenneth Parker J added this notable observation:
In these circumstances I do not believe that there is any real independent issue about the legality of the Order under Article 8 ECHR. The conclusion must be the same. However, I should perhaps add that the reverse argument does not necessarily apply. In other words, even if it were disproportionate under Article 8 ECHR for the state to disclose, say, a warning long ago given to a child for a minor criminal matter, it would not automatically be an infringement if the state permitted a private employer to enquire about all criminal convictions, to insist on truthful answers and to take appropriate action in response to the answers given.
The learned judge also observed that, if he had had to decide the issue of whether the state had a positive obligation in these circumstances, he would have found that it did not.
The claims were accordingly dismissed. However, given their general importance and Kenneth Parker J’s reluctant conclusions, he granted leave to appeal.
This post first appeared on Panopticon’s blog and is reproduced here with permission and thanks