Blanket disclosure requirement for minor past convictions breaches Convention

30 January 2013 by Rosalind English

 T, R on the application of) v Chief Constable of Greater Manchester, Secretary of State for the Home Department and Secretary of State for Justice; AW, R (on the application of) v Secretary of State for Justice and JB, R (on the application of) v Secretary of State for Justice  [2013] EWCA Civ 25 – read judgment

The Court of Appeal has ruled that the statutory requirement that criminal convictions and cautions must be disclosed in an enhanced criminal record check (“ECRC”) in the context of particular types of employment interfered with the appellants’ right to respect for private life under Article 8.

Neither of the disclosure provisions, under the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, were  proportionate since they went beyond the legitimate aims of protecting employers and vulnerable individuals.

See Panopticon’s post on the ruling and their previous post (republished on our blog) on the dismissal of T’s application for judicial review in the Administrative Court. We add a few words of our own.

Background

In these conjoined cases, T challenged the compatibility with the Convention of the statutory scheme for disclosure of past criminal records after an ECRC (disclosing two cautions for bicycle theft)  prevented him from being considered for a part-time job at a local football which involved working with children. The ECRC was also requested by a university where he later applied for a course on sports studies. His application for judicial review, though sympathetically heard, was dismissed because it had been held in a similar case that the relevant provision of the Police Act could be read down so as to be compatible with Article 8.    JB had been cautioned for “lifting” a packet of false nails from a branch of Superdrug. Years later, when she applied for a vacancy in the care sector, she was subject to a criminal records check before she could be put forward for job opportunities. An ECRC was issued and it revealed the caution. She was then told that she would not be offered employment as her criminal record rendered her inappropriate for work with vulnerable people. She remains unemployed. The other applicant, AW, had received concurrent sentences of five years and four years’ detention respectively for offences of manslaughter and robbery when she was 16. As she wanted to serve in the army, she sought judicial review of the statutory scheme on the basis that it prevented her convictions from ever being regarded as spent and was therefore incompatible with Article 8. In this hearing she renewed her application for permission to appeal against the Administrative Court’s ruling that any interference with her rights under Article 8 resulting from that scheme had been proportionate and therefore justified.

The appeals of T and AB were allowed, AW’s application was refused.

Reasoning behind the judgment

Article 8

There are two main ways in which the disclosure of information about past convictions or cautions could interfere with the right to respect for private life under article 8(1). First, the disclosure of personal information that individuals wish to keep to themselves can constitute an interference. Whilst a criminal conviction information is public by virtue of the simple fact that convictions are made and sentences are imposed in public, once a conviction recedes into the past, it becomes part of the individual’s private life. By contrast, a caution takes place in private, so that the administering of a caution is part of an individual’s private life from the outset. Secondly, the disclosure of historic information about convictions or cautions can lead to a person’s exclusion from employment, and can therefore adversely affect his or her ability to develop relations with others: this too involves an interference with the right to respect for private life: see Sidabras v Lithuania 2004) 42 EHRR 104, para 48.

In T’s case, the disclosure of the warning on an ECRC interfered with his rights under Article 8 because it involved the disclosure of sensitive personal information which was an aspect of his private life and because that disclosure was liable to affect his ability to obtain employment and to form relationships with others.

A “blanket regime” is not justifiable

The Court accepted that he interference with T’s article 8 rights pursued both (i) the general aim of protecting employers and, in particular, children and vulnerable adults who are in their care and (ii) the particular aim of enabling employers to make an assessment as to whether an individual is suitable for a particular kind of work. But  the statutory regime requiring the disclosure of all convictions and cautions relating to recordable offences was disproportionate to that legitimate aim.  Although disclosable offences did not include those which were so insignificant that they were not recorded on the Police National Computer (PNC), that was not a proportionate filtering scheme in the context of Article 8 considerations. The blanket nature of the disclosure regime went beyond what was necessary to achieve its protective purpose. If such a rule fails in a significant way to achieve its stated purpose and/or is disproportionate, then it is unlikely to be saved merely because it is a “bright-line” rule which has the merit of simplicity and ease of administration.  The fact that an Advisory Panel for the Disclosure of Criminal Records was considering possible ways of filtering out  minor and old convictions suggested there were less draconian ways to achieve the legitimate aim pursued by Section 113B of the 1997 Act.

T and AB were both entitled to a declaration of incompatibility in relation to the 1997 Act and, in the case of R,  a declaration that the Order was ultra vires the 1974 Rehabilitation of Offenders Act because that Act did not permit the making of regulations in breach of Article 8.   AW was refused permission to appeal.  Parliament was entitled to take the view that some offences were so serious that they should never be regarded as “spent”. That was not a blanket policy: it discriminated between offences which were very serious and those which were not.

The Court has stayed the effect of this judgment, pending any application by the Secretaries of State for permission to appeal to the Supreme Court. The government has indicated that it will seek to appeal this ruling.

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