Court of Appeal considers whether the Enhanced Criminal Records Certificate regime infringes Article 8

This week, the Court of Appeal heard the cases of R (T) v Chief Constable of the Greater Manchester Police and others and R (JB) v the Secretary of State for the Home Department.  These are the latest in a series of cases challenging whether the criminal records checks regime is compatible with the Convention.  Unlike previous cases, which have concerned the disclosure of “soft information” held on local police computer systems, these cases raise in stark terms the compatibility of s.113B(3)(a) of the Police Act 1997 with Article 8.  This requires the disclosure of all convictions, cautions, warnings and reprimands on an Enhanced Criminal Records Certificate (“ECRC”).  In T’s case, his ECRC disclosed a warning he had been given for stealing a bicycle when he was 11.  In JB’s case, her ECRC disclosed a caution for shoplifting given eight years before the check.

Was there an interference?

The first issue to be considered by the Court is whether there is any interference with Article 8.  Following R (L) v Commissioner of Police for the Metropolis [2010] 1 AC 410 M.M. v United Kingdom (Application no. 24029/07), it is clear that a person’s Article 8 rights will be engaged by disclosure of their past convictions in two situations:  if the disclosure has a direct effect on their employment opportunities; or if their convictions are sufficiently long ago that they have become part of their private life.

Neither T nor JB lost employment opportunities as a direct result of the ECRC.  T risked losing a place on his degree course, but was eventually permitted to finish.  JB was told that one agency would not put her forward for work as a carer.  However, she may be able to work with other agencies.

The question is whether the disclosure of this information on an ECRC will necessarily interfere with the right to respect for private life, even if it does not affect the subject’s employment opportunities.  In favour of this proposition, it was argued that because a caution or warning is given in private, as it recedes into the past, it becomes part of the subject’s private life.  Similarly, as a conviction recedes into the past, it could also become part of the subject’s private life.  Against it, it was argued that the conviction and warning were too recent to have become part of the Claimants’ private lives.

Was any interference justified?

The question of whether any interference was justified turns on both principled arguments and the effect of a number of key decisions in this area.

As to the principles, the Claimants, Liberty and the EHRC argued that it was disproportionate to require blanket and indiscriminate disclosure of all convictions, cautions, warnings and reprimands, no matter how old and how relevant to the purpose for which the ECRC was obtained.  Counsel for the Secretary of State argued that designing the criminal record checks regime involves striking a balance between important and conflicting interests. This is a matter for Parliament.  Parliament has resolved to leave it up to employers to decide whether an offence is minor or irrelevant.  This solution allows for an automated, rule-based process for undertaking the ECRC.  Therefore, he argued, this is a reasonable solution.

In addition to this analysis of the principles, arguments on justification focused on the effect of three key authorities:

  1. R (L) v Commissioner of Police for the Metropolis [2010] 1 AC 410.  The Court of Appeal was asked to consider whether the majority of the Supreme Court in L had decided that the Act was compatible with Article 8 insofar as it required disclosure of all convictions and cautions.  There was also debate as to whether L is incompatible with the later Supreme Court decision that the notification obligations on sex offenders were incompatible with Article 8 (R (F) v Justice Secretary [2011] 1 AC 331).
  2. Chief Constable of Humberside Police and others v Information Commissioner [2010] 1 WLR 1136:  A week before the decision in L, the Court of Appeal had held that the retention of information regarding criminal convictions was justified.  The question for the Court of Appeal now is whether this decision is distinguishable on the grounds that it concerned retention, rather than disclosure, of information.
  3. M.M. v United Kingdom (Application no. 24029/07):  Only two weeks ago, the Strasbourg Court held that the arrangements in Northern Ireland for the indefinite retention of data relating to a person’s criminal caution infringe Article 8 of the ECHR (read Charles Bourne’s blog post on this case here).  The disclosure of this data in criminal record checks was also found to infringe Article 8, as the statutory scheme did not provide sufficient safeguards to protect the data from disclosure in breach of Article 8.  Therefore, the interference with the Applicant’s Article 8 rights was ‘not in accordance with the law’.  Before the Court of Appeal, it was argued by the Government that MM: was wrongly decided; was distinguishable on its facts; does not embody any clear constant jurisprudence of the Strasbourg Court and cannot in any event be followed because of the effect of the Supreme Court’s decision in L.

Is the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) ultra vires?

This additional issue was only raised in T.  Applicants for jobs covered by the Order have to answer truthfully any questions from prospective employers about their spent convictions and cautions.  Applicants for jobs falling outside the scope of the Order are permitted to answer untruthfully.  The question is whether the Order is ultra vires because it is incompatible with Article 8 to (in effect) require prospective employees for certain positions to disclose all of their convictions and cautions.  There was argument as to whether striking down the Order would improperly impose a positive obligation on the State to permit employees to give untruthful answers.  The Court is also asked to consider whether the compatibility of the Order is really a distinct issue from the compatibility of s.113B(3)(a) of the Police Act.

Judgment is awaited.

Jason Coppel represented the Home Secretary in both cases and the Justice Secretary in T.  Tim Pitt-Payne QC represented Liberty, intervening in T.


Hannah Slarks