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) [2012] 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 [2009] UKSC 3 [2010] 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 [2010] UKSC 17; [2011] 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 [2008] 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
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One can understand the reluctance of the judge to make this finding. The full disclosure in relation to ENHANCED certificates is a statutory rule and is sometimes harsh in its operation. Once a matter is disclosed, the prospective employer or educational establishment may have a discretion but. all too often, the decision will probably go against the applicant. “Daren’t take the risk” etc. Also, there will usually be other applicants with clean certificates !
In relation to something done by an 11 year old, the question of age of criminal responsibility is (yet again) raised. Our law makes an 11 year old criminal liable but many other European legal systems would not.
A further issue is cautioning. Many people do not have any understanding of the potential impact of cautioning. The offence has to be admitted. Once the caution is administered, it can have similar effects to a conviction before the court. Furthermore, the Police will not usually explain – even to children / young persons or their parents / carers – the possible future impact of receiving a caution.
I am a roman catholic and I had to apply for a certificate to lawfully permit me to visit parishioners in two local residential homes and parishoners at their own homes. I have always held the view that the questions to be answered do not accurately portray the requirements of the law, in that it instructs all applicants to disregard convictions that are over 7 years old, as if they are spent.
Years ago there is a Judgement of the Court of Appeal which ruled that *spent convictions” only applied to persons appearing in a criminal court.
Clearly the Government’s department need to get their act together; they proceed as if decisions at common law do not apply to them.
One marvels at the carefully crafted futility of the Human Rights Act 1998 which guarantees no rights at all. In a minimum-waged economy with its casualised workforce who are the most easiest to exploit and most in need of its protection, the Act promised much and failed to deliver to all but the economically powerful. Why would the minimum-waged supermarket shelf-stacker, or office cleaner risk the loss of their home in ‘full and final settlement’ of the price to be paid in lieu of the loss of legal aid for the dubious privilege of ascending the summit of Mount Olympus to reach the higher courts who have exclusive jurisdiction (section 4(5)) to hear claims brought under the Act, in the vain hope of receiving a mere ‘declaration’ of ‘incompatibility’ (section 4(2)) which has absolutely no effect on that individual’s legal position(sections 3(2)(b) and 4(6)(a)) emanating from a judgment that does not bind any of the parties to it (s4(6)(b) and no right to an effective remedy since Article 13 has been expressly excluded from the Act under section 1. For those most in need of protection, the Act does not protect rights, rather, it protects the myth that an individual actually has them! If an individual believes that he has protectable rights, then that is as good as the real thing. The Act may protect an individual from pernicious officials by allowing the court to strike down incompatible subordinate legislation but does absolutely nothing at all to protect the public from the clear words underpinning the nasty and pernicious legislation that spews out of a supine Parliament ‘on the nod’ of those who vote on a ‘three-line whip’ who hardly bother to read, let alone debate!
This young man’s life chances were decided for him on a single day when he was relegated to the ‘criminal underclass’ at aged 11 by the same people who railed against the life chances of children being determined by a failure on one day to pass an 11-plus examination!