One might have thought, following the judgments of the Court of Appeal (noted here) and the Supreme Court (noted here) in R (T) v Chief Constable of Greater Manchester Police  UKSC 35, that there was little left to say about enhanced criminal records certificates (ECRC). After all, the Government had, with moderate grace, gone away after the Court of Appeal loss and drafted a revised set of rules in the Rehabilitation of Offenders Act (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (SI 2013/1198) which sought to better implement the Article 8 ECHR balance between the needs of employers and the need for long-distant misbehaviour not to be a permanent stain. But that thought fatally undervalues the ingenuity of lawyers (as well as the breadth of application of the ECRC regime).
And so, in R (P and A) v Secretary of State for Justice  EWHC 89 (Admin) the Divisional Court was asked to consider the compatibility of the revised ECRC regime under the 2013 Order. In particular, the challenge concerned the amended provision in section 113A(6) of the Police Act 1997. The effect of the provision is that where there are two or more convictions, they are always disclosable on a CRC or an ECRC. Further, where a conviction is of a specified kind or resulted in a custodial sentence, or is “current” (i.e. for an adult within the last 11 years and for a minor within the last 5 years and 6 months), then it will always be disclosable. The list of applicable offences is a fairly extensive one.
P had, whilst an adult, had a period of severe and undiagnosed mental illness during which she had committed two offences of theft by shoplifting of very inexpensive items, being cautioned for one and convicted for the other. She was then also convicted for failing to surrender to bail and attend court. Her health having considerably recovered, she now wishes to return to her teaching profession as a teaching assistant. Working with young people requires an ECRC. A also acquired two convictions for theft at the ages of 17 and 18. He is now 51 and wishes to work in the finance industry in a role which may require Financial Services Authority approval, again under which his past convictions would be disclosed.
The argument for the claimants was that to set the bar at one single conviction is arbitrary and is not either “in accordance with the law” nor is it necessary or proportionate within the second limb of the test set out in Article 8(2).
Following a lengthy analysis of the case law pre- and post-T, McCombe LJ agreed. He held that the Supreme Court’s approach in T had moved the law on a considerable distance concerning whether a decision is in accordance with the law. The effect of that judgment was, in McCombe LJ’s view, to require the provision to set out adequate safeguards which have the effect of enabling the proportionality of the interference to be adequately examined, as well as protection against arbitrariness: at . Where the system produced such questionable results as those for P and A in cases on the margins, there ought to be some sort of machinery for testing the proportionality of that interference. As a result, he noted at , one need not get to any question of deference because the structured proportionality analysis in Article 8(2) is not even reached.
McCombe LJ went on to hold, at , that there was no reason why a second conviction should require, for an entire lifetime, disclosure of those convictions, such that there was no “rational relationship” with the purpose of the legislation (i.e. rehabilitation). In essence, and as Carr J added briefly, the Court could not accept that this was a situation which warranted a bright line approach. If a measure is not necessary, it is irrelevant how administratively convenient it may be.
The precise form of relief was a matter which was to be resolved following further submissions, and that is not surprising, as the Court was slightly unsure precisely how its judgment impacted on the regime. At the very least, it will require the Home Secretary to return once again to the drawing board. It seems very unlikely that any future effort will avoid yet another challenge, focusing again on how it affects cases at the margins.