R (On the application of T and another) (Respondents) v Secretary of State for the Home Department and another (Appellants) – read judgment
The Supreme Court has unanimously declared that government rules regarding the disclosure of spent convictions are unlawful and incompatible with Article 8 of the Convention.
One of these conjoined appeals involved T, who was prevented from employment involving contact with children when a police caution was disclose in respect of the theft of two bicycles when the respondent was eleven years old (see my previous post on the Court of Appeal judgment in T). In JB, the police issued a caution to a 41 year-old woman in 2001 when she was caught shoplifting (a packet of false fingernails). In 2009 she completed a training course for employment in the care sector. She was required to obtain an “enhanced criminal record certificate” or ECRC, which disclosed the caution. The training organisation told JB that it felt unable to put her forward for employment in the care sector.
Both respondents claimed that the references in the ECRCs to their cautions violated their right to respect for private life under Article 8 of the European Convention on Human Rights. T also asserted that his obligation to disclose the warnings violated the same right. Both T and JB were successful in the Court of Appeal, which made declarations that the relevant provisions of the 1997 Act were incompatible with Article 8. The Court of Appeal in T held that the 1975 Order was also incompatible with article 8 and beyond the powers set out in the Rehabilitation of Offenders Act 1974.
The Secretaries of State appealed to the Supreme Court. While they have made amendment orders designed to eliminate the problems identified by the Court of Appeal, their appeals concern the 1975 Order and 1997 Act as they stood at the time.
The following summary is based on the Supreme Court’s Press Summary.
Under the 1974 Act, where a person is asked about his criminal record the question will be treated as not extending to ‘spent’ convictions. Consequently, he is entitled not to disclose these and cannot be liable for a failure to do so. Equally, a prospective employer is not entitled to make any decision prejudicial to the individual by reference to spent convictions or to any failure to disclose them. This applies to cautions, warnings or reprimands, which are spent as soon as they are given.
However, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and various sections in Part V of the Police Act 1997 make certain questions exempt from the 1974 Act, particularly where they relate to specified professions and employments, such as working with children and vulnerable adults. Part V of the 1997 Act deals with enhanced criminal record certificates (ECRCs). These are issued where an “exempted question” within the meaning of the 1975 Order is asked, including by a prospective employer. Disclosure is then made of every “relevant matter” recorded on the Police National Computer, including, at the relevant time, any spent conviction or caution [83-84]. These were the provisions which the Court of Appeal declared to be incompatible with the Convention in January 2013.
Lord Neuberger (President), Lady Hale (Deputy President), Lord Clarke, Lord Wilson, Lord Reed unanimously dismissed the Secretary of State’s appeals against these declarations of incompatibility. They allowed the appeal against the Court of Appeal’s declaration that the 1975 Order was ultra vires.
Reasoning behind the decision
The respondents’ cautions represented an aspect of their private lives, respect for which is guaranteed by Article 8. Laws requiring a person to disclose his previous convictions or cautions to a potential employer constituted an interference with that right. The disclosures in the ECRCs also constituted Article 8 interferences, significantly jeopardising the respondents’ entry into their chosen fields of endeavour.
Lord Reed considered that sections 113A and 113B of the 1997 Act were incompatible with Article 8 because they fail to meet the requirement under the Convention that any interference with the Convention right be “in accordance with law”. In this he followed the line of reasoning taken by the Strasbourg Court in MM v UK (No 24029/07, The Times 16 January 2013). Legality requires safeguards which enable the proportionality of the interference to be adequately examined [108-119; 158]. Legislation like the present which requires the indiscriminate disclosure by the state of personal data which it has collected and stored did not contain adequate safeguards against arbitrary interferences with Article 8 rights [113-119]. Lord Neuberger, Lord Clarke and Lady Hale agreed with Lord Reed’s conclusion on legality , while Lord Wilson disagreed [28-38], emphasising the importance of the distinction between the tests of legality and necessity in a democratic society. On this point he was critical of the European Court’s approach in MM. It could not be seriously argued, he said,
that the way in which the regimes for the issue of certificates under the 1997 Act and for the obligation to answer questions (and for the questioner to act in reliance on them) under the 1975 Order worked were insufficiently accessible or foreseeable for them not to be “in accordance with law” 
Both domestic courts and Strasbourg are giving way to the temptation to elide the tests of legality and necessity when determining whether an interference with Convention rights is permissible. It is particularly important that Strasbourg judges observe the difference between the two, because legality is a bright line test, whereas necessity gives states some margin to manoeuvre:
a cardinal feature of [the Strasbourg] court’s jurisprudence in relation to necessity is to afford a margin of appreciation, of greater or lesser width, to the contours within which the member state has seen fit to draw the impugned rules. The ECtHR does not extend the margin of appreciation – and it is right that it should not do so –to its consideration of legality. 
In Lord Wilson’s view, Strasbourg’s “powerful criticism” in MM of the failure of the regime under the 1997 Act to regulate disclosure by reference to the circumstances of the caution, clearly addresses its proportionality and thus the necessity, as opposed to the legality, of the interference. The 1997 Act did not fall foul of the principle of legality; its application, on the other hand, to the cases of T and JB the regime set up by the 1997 Act and by the 1975 Order failed the requirement of necessity.
The disclosure of their cautions, obviously that of T but also in my view, in the light of the triviality of her one and only offence, that of JB, went further than was necessary to accomplish the statutory objective and failed to strike a fair balance between their rights and the interests of the community; and so it violated their rights under article 8. 
Lord Wilson noted, further, that it was the Home Secretary who identified a need to scale back the criminal records system “to common sense levels”. Lord Reed pointed to a lack of a rational connection between dishonesty as a child and the question of whether, as an adult, the person might pose a threat to the safety of children with whom he comes into contact .
In upholding the declarations of incompatibility in relation to the 1997 Act, the Court observed that it was impossible to read and give effect to its provisions in a way which was compatible with the respondents’ Convention rights [53; 120]. But they allowed the Secretary of State’s appeal in T against the decision that the 1975 Order was ultra vires. This was inconsistent with the declaration of incompatibility, which stated that it did not affect the validity or continuing operation of the 1997 Act, Part V of which in fact relied upon the validity of the terms of the Order [61-62]. No judicial remedy in relation to the Order ws necessary. Lord Reed explained that it had no adverse consequences for T and he could be regarded for the purposes of the Convention as having obtained just satisfaction given the courts’ acceptance that his complaint is well-founded and the resultant amendment of the Order [66;157-158].
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