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.