• Criminal Records Checking Scheme Breaches Article 8

    In R (on the application of T and anor) v Secretary of State for the Home Department and anor the Supreme Court has upheld the Court of Appeal’s decision that the statutory criminal record checking scheme breached Article 8 of the European Convention on Human Rights (ECHR) and its declaration of incompatibility in relation to the sections of the Police Act 1997 that govern the scheme. However, the Supreme Court allowed an appeal against the Court of Appeal’s declaration that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 SI 1975/1023 (ROA Order) was ultra vires, as this was inconsistent with the declaration of incompatibility in relation to the Police Act.
    When aged 11, T received two police warnings (which are similar to a police caution given to an adult). He had no other criminal record. The warnings were disclosed when, as an adult, he applied for a position that required an enhanced criminal record certificate (ECRC) under the Police Act 1997, leading to his application being rejected. JB received a caution for shoplifting as an adult and was rejected from employment in the care sector when this was disclosed on her ECRC. T and JB separately brought judicial review proceedings in the High Court, claiming that the references in the ECRCs to their records violated their right to respect for private life under Article 8 ECHR. The High Court rejected both challenges and T and JB both appealed to the Court of Appeal, where their cases were heard together.
    The Court of Appeal (Brief 968) held that the disclosure provisions of the Police Act 1997, which govern ECRCs, were incompatible with Article 8, noting that the position is even stronger in relation to offenders who, like T, were children at the time of their offending. It went on to hold that the provisions of the ROA Order – by which an individual may be required, subject to a civil penalty, to disclose criminal records including cautions and warnings if asked by a potential employer – were also incompatible with Article 8. Accordingly, the Court made a declaration of incompatibility with regard to the 1997 Act, and a declaration that the ROA Order was ultra vires. The Secretary of State for the Home Department and the Secretary of State for Justice, who are responsible for the ECRC scheme and the ROA Order respectively, appealed against this decision to the Supreme Court.
    The Supreme Court noted that the cautions represented an aspect of T’s and JB’s private lives, respect for which is guaranteed by Article 8. Furthermore, both the requirement to disclose previous convictions, cautions and warnings to a potential employer and the disclosures in ECRCs constituted Article 8 interferences. The Court unanimously held that these Article 8 interferences could not be said to meet the requirement of being necessary in a democratic society. It referred, among other things, to the fact that a more calibrated system for identifying material which should be the subject of disclosure under the 1997 Act had since been introduced by the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 SI 2013/1200, which removes many ‘spent’ convictions from the scope of an ECRC. The Court therefore upheld the declaration of incompatibility in relation to the 1997 Act as it was impossible to read its provisions in a way compatible with T’s and JB’s ECHR rights.
    The Court allowed the appeal against the declaration that the ROA Order was ultra vires. The Court held that this was inconsistent with the Court of Appeal’s declaration of incompatibility in relation to the 1997 Act because, although the declaration of incompatibility stated that it did not affect the validity or continuing operation of the 1997 Act, Part V of the Act relied upon the validity of the ROA Order. The Court considered that no judicial remedy was necessary in relation to the ROA Order. Lord Reed stated that T could be regarded for the purposes of the Convention as having obtained just satisfaction, given the courts’ acceptance that his complaint was well-founded and the amendments to the ROA Order following the Court of Appeal’s decision. See our news story of 18 February for more on the changes.

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