Full case report

R (T) v Greater Manchester Chief Constable (CA)

Reference [2013] EWCA Civ 25
Court Court of Appeal (Civil Division)

Judge Master of the Rolls, Richards LJ, Davis LJ

Date of Judgment 29 Jan 2013


Summary

Cautions and convictions – rehabilitation of offenders – disclosure – Article 8


Facts

The Claimant appellants were individuals who had received cautions or criminal convictions which were now spent, but which they had had to disclose under the terms of the Rehabilitation of Offenders Act 1974 (“the ROA”) and the Police Act 1997 (“the 97 Act”). The Respondents were the Chief Constable of Greater Manchester, the home city of the first Claimant, and the Secretaries of State for Justice (“SSJ”) and the Home Department (“SSHD”).

The ROA aims to rehabilitate offenders, deeming convictions, cautions and so on spent after certain specified periods of time. The 97 Act provides for the issue of enhanced criminal record certificates (“ECRCs”) which are required when undertaking work with children and vulnerable adults. It also provides for the issue of Criminal Record Certificates (“CRCs”).

The question of whether or not the criminal records system strikes the right balance between respecting civil liberties and protecting the public had already been considered by the Criminal Records Review of 2010, which was set up by the SSHD. The Review suggested the filtering and removal of old and minor convictions, but the implementation of a mechanism to do this was beset with practical difficulties.

The case of T was the principal focus of the judgment. He had received warnings at the age of 11 from the Manchester Police in connection with two stolen bicycles. These had been revealed on ECRCs following an application to work at a local football club, and on enrolling on a sports studies course at university.


Issue

(1) Were the provisions requiring the disclosure of CRCs and ECRCs capable of interfering with the right to respect for private life within article 8(1)?

(2) If so, was the interference justified within the meaning of article 8(2)?

(3) Was there binding authority which is decisive of the outcome of the case in any event?

(4) There were also issues as to whether the ROA and the ROA Order were compatible with article 8.


Held

Granting two of the appellants a declaration that the 1997 Act is incompatible with article 8:

(1)    The SSHD was right to accept that the provisions of the 1997 Act requiring the disclosure of convictions and cautions on ECRCs were capable of interfering with the right to private and family life. First, the disclosure of information individuals wish to keep private can be an interference with the right. Although convictions are made and sentences imposed in public, they become part of private life as they recede into the past; a caution takes place in private, so it is part of private life from the outset. Second, the disclosure of information about convictions or cautions can lead to exclusion from employment, affecting an ability to develop relationships with others, which can also be an interference with the right.

(2)    The SSHD sought to justify the requirement for disclosure on several grounds under article 8(2). The court accepted that the interference with T’s article 8 rights pursued the general aim of protecting employers, and the children and vulnerable adults in their care, and the particular aim of enabling employers to assess an applicant’s suitability for this kind of work. However, the statutory regime requiring the disclosure of all convictions and cautions relating to recordable offences was disproportionate to that legitimate aim.

The scheme did not seek to control the disclosure of information by reference to its relevance in the context of employers’ assessment of the suitability of employees for a particular kind of work. This was illustrated in T’s case by the fact that he was 11 when he received warnings in connection with stolen bicycles, and that it was hard to see what relevance this had to his enrolment on a sports course and having contact with children 7 years later.

Bright line rules may still be appropriate even where there are cases at the margins which they do not fully cater for. However, where a rule does not fulfil its purpose or is disproportionate, it will not be saved simply because it is convenient to do so for administrative purposes.

(3)    The Court was not bound by two previous decisions at this appellate level in reaching its decision, neither case relating to the scheme for disclosure of convictions or cautions.

(4)    The ROA Order concerned the individual’s own duties of disclosure when applying for employment. From the incompatibility of the 1997 Act with article 8, it followed that the Order was itself also incompatible.


Comment

This decision makes clear that Article 8 rights are engaged by the disclosure of criminal convictions and cautions, and aspects of the Judges’ observations on this engagement are of potentially wider application in grasping the scope of article 8.

Of particular interest is the analysis of the changing nature of criminal convictions in relation to privacy rights, an approach which is significant in the context of the information society. The idea that they are public when first made, and do not therefore engage an individual’s article 8 rights, but that they become an aspect of an individual’s private life as they recede into the past, indicates the extent to which such rights are susceptible to development over time.

The release of information about an individual which is a matter of public record could alternatively be legitimate, or an irrelevant and excessive disclosure, depending on what point in time it relates to. This raises numerous questions as to the kind of information which would be affected by the passage of time, and as to how long it takes for the change in the nature of the information to take place. The answers would be relevant to all those who hold individuals’ information and data, but particularly to public authorities.