The Court of Appeal has today handed down an important judgment in R (T & others) v Chief Constable of Greater Manchester & others [2013] EWCA Civ 25. The case concerned the blanket requirement in the Rehabilitation of Offenders Act 1974, section 113B of the Police Act 1997 and articles 3 and 4 of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 that criminal convictions and cautions must be disclosed in an enhanced criminal record check (“ECRC”) in the context of particular types of employment (such as with children or vulnerable adults), even if those convictions or cautions would otherwise be deemed spent by the 1974 Act. (For a summary of the issues prior to the hearing, see Hannah Slarks’ post here.)

The Cases

The Court heard three conjoined cases. The lead case, T, was an appeal against a judgment of Kenneth Parker J: [2012] EWHC 147 (Admin) (upon which Robin Hopkins blogged here). T had received two cautions in relation to two stolen bicycles when he was 11 years old, which was disclosed as part of his participation in a sports studies degree course because he was required to work with children. T was not in fact prevented from completing his degree following the ECRC. JB was a lady who had been refused employment as a care home worker following the revelation in her ECRC that she had a caution for theft of some false nails eight years previously. Permission to judicially review the legislative scheme had been refused by HHJ Gosnell. A third case was also joined, that of AW, who when 16 had received custodial sentences for manslaughter and robbery arising out of a car-jacking and who wished to join the Army. Permission had been refused in her case by HHJ Gosnell, and unlike JB, permission to appeal had also been refused on the papers by the Court of Appeal.

Interference with Article 8

Lord Dyson MR, Richards and Davis LJJ accepted the written concession of the Secretary of State that there was an interference with the Article 8 rights of the claimants. There are two possible forms of interference. First, it may occur where there is disclosure of personal information which individuals wish to keep to themselves. Cautions are generally given in private and will fade into the past. Secondly, disclosure may lead to an individual’s exclusion from employment. For T, the first of these was clearly engaged, but Court also considered the second to be in play, holding that it was sufficient that disclosure “was liable to affect his ability to obtain employment”, even though it did not in fact do so: at [31]-[32].

Justification

The Court had no difficulty in finding that the criminal records regime pursued a legitimate aim, generally of protecting employers and children or vulnerable adults in their care, and particularly of enabling employers to make an assessment as to whether an individual is suitable for a particular kind of work. However, the Court held that that the disclosure of all convictions and cautions relating to recordable offences was disproportionate to that aim: at [37].

The fact that a bright-line rule had been adopted did not save the regime, where there was no attempt to control disclosure by reference to the information’s relevance to the legitimate aim. Nor did the Court accept an argument based upon resource implications. It was not necessary to consider every case individually; bright-line sub-rules could be used. The Court was particularly struck by a Criminal Records Review carried out an Independent Advisor to the Government, which had recommended the introduction of a filter to remove minor and old convictions where appropriate, which the Government had not rejected. The Independent Advisory Panel for the Disclosure of Criminal Records, set up following the Review, has been considering the issue. In short, the Court considered that there was a range of possible filter mechanisms which could have been adopted and which were, at the least, less disproportionate than the blanket requirement imposed by s.113B of the 1997 Act.

The Court drew further support from the recent decision of the Strasbourg Court in MM v UK (App. No. 24029/07) (on which see Charles Bourne’s post here), although it accepted that the judgment did not go to proportionality in terms but was a finding that the interference was not in accordance with the law. However, the Strasbourg Court had identified the blanket nature of the Northern Irish system in issue as a shortcoming and had directly relied upon the Supreme Court’s decision in R (F) v Secretary of State for Justice [2010] UKSC 17, [2011] 1 AC 331 (blanket notification requirements imposed on sex offenders without possibility of review incompatible with Article 8, a judgment which the Prime Minister described as “appalling“): at [53].

Contrary to the position taken by Kenneth Parker J, the Court of Appeal refused to consider themselves bound to find the regime compatible with Article 8 following the Supreme Court’s judgment in R (L) v Commissioner of Police for the Metropolis [2009] UKSC 3, [2010] 1 AC 410 because it had been concerned with the discretionary disclosure of police information rather than the mandatory disclosure convictions and cautions, and any assumptions made by the Supreme Court as to the compatibility of the disclosure regime had not been part of the ratio of the decision: at [62].

The 1975 Order

Kenneth Parker J had also accepted an argument from the Secretary of State that the 1975 Order could not be impugned on Article 8 grounds because to do so would presuppose that the State had a positive obligation to intervene in private employment relationships to permit individuals to conceal information about their criminal records. The Court of Appeal declined to engage in distinguishing between positive and negative obligations where the State had already “altered the legal landscape” by enacting the 1974 Act and 1975 Order. The real question was one of fair balance, which had not been struck and it would be absurd if the ECRC regime in the 1997 Act was incompatible with Article 8 so that the State could not disclose the record but that the individual, under the 1975 Order, must do so or face civil liability: at [68].

Relief

In the case of both T and JB the Court of Appeal declared the regime implemented by the 1997 Act incompatible with Article 8 ECHR, and in the case of T, that articles 3 and 4 of the 1975 Order were ultra vires because they had been made incompatibly with Article 8. However, in the case of AW permission to appeal was refused because the disclosure of convictions for manslaughter and robbery because such offences could never be spent fell within the area of discretionary judgment open to Parliament.

The Court held that it was necessary for Parliament to decide what filtering mechanism would most effectively balance the Article 8 rights of the individual with the interests of employers and vulnerable individuals. There were a number of potential approaches, and the Court declined to proscribe or provide guidance: at [69], [75]. Although it rejected a request by the Secretaries of State to narrowly limit the declarations it in respect of the 1975 Order, the Court stayed the effect of their judgment pending any application by the Secretaries of State for permission to appeal to the Supreme Court. The Court refused permission itself, and the Government has indicated that it will seek to appeal.

The judgment raises difficult questions for Parliament as to how to proceed, as well – prior to the legislation being amended – as for employers and others who wish to rely upon spent convictions or cautions as a ground for excluding employment etc. in the circumstances spelled out in the 1975 Order (such as, notably, employment involving responsibility for children and vulnerable adults).

Jason Coppel appeared for the Secretaries of State for the Home Department and Justice; Timothy Pitt-Payne QC appeared for Liberty as an intervener.

Christopher Knight