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Is the criminal records scheme compatible with Article 8 ECHR?

About The Author

Georgia Mitchell (Writer)

Georgia is in her second year of Law at Newcastle University. She is currently pursuing a career as a commercial solicitor, and hopes to work abroad within the EU at some point in her future career. Outside of her studies, Georgia is an avid tennis fan.

The application of the government’s criminal records scheme has lately been subject to extensive litigation. Specifically, questions have been raised about whether the scheme in its entirety is compatible with the European Convention of Human Rights ("ECHR"), in particular, Article 8, the right to privacy.

R (T & others) v Chief Constable of Greater Manchester & others [2013] EWCA Civ 25

In January 2013, the Court of Appeal handed down an important judgment with respect to this case that declared the criminal records regime was in fact in breach of Article 8. The case questioned the compatibility of s.113B (3)(a) of the Police Act 1997 (“the 1997 Act”). The section states that convictions or cautions must be disclosed in an Enhanced Criminal Record Certificate ("ECRC") for particular types of employment, such as working with children. This even includes those ‘deemed spent’ by s. 6 of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (“the 1974 Act”). (the appellant) disputed whether his two warnings for stealing bikes (having been acquired at the mere age of 11) should be disclosed in his ECRC when participating in a sports study degree course which required working alongside children. In deciding this case the court considered three things:

  1. whether there was an interference with Article 8;
  2. whether this interference was justified; and
  3. whether the 1974 Act was ultra vires.

Was there an inteference with Article 8?

There are two possible forms of interference with Article 8 which can be identified by the courts. First, it may occur where there is disclosure of personal information which individuals wish to keep to themselves. Secondly, it may arise if the disclosure leads to an individual’s exclusion from employment. In T’s case, the first of these was clearly engaged but the courts also considered the second to apply, holding it to be sufficient that disclosure ‘was liable to affect his ability to obtain employment’ even though it had not yet in fact done so.

Was this interference justified?

The main objection to the scheme was that there was no attempt to control the disclosure of information as to whether it is relevant to enable employers to assess the suitability of an individual for a particular kind of work. Nor did the court accept an argument based upon resource implications. It was held unnecessary to consider every case individually as ‘bright-line sub rules’ could be used. The court highlighted the Criminal Records Review within their judgment and drew attention to the 2011 review conducted by an independent advisor for the government, Sunita Mason. It was said:

There is a reasoned argument that, in many cases, the disclosure of conviction information that is both minor and disproportionate places an unnecessary burden on the lives of individuals. This is particularly so, where the conviction became spent many years earlier and the individual poses no significant public protection risk to children or vulnerable adults.

Mason stressed that she was keen to ensure that the Government implements an appropriate form of filtering in the Criminal Records Bureau (CRB) process (now the Disclosure and Barring Service (DBS)), a step which would eliminate conviction information of a minor and usually outdated nature. An Independent Advisory Panel for the Disclosure of Criminal Records, set up following the Review, has been considering the issue in depth. In short, the court considered there was a potential range of filtering mechanisms which might have been adopted and which were all more subtle devices than the more cumbersome, blanket requirements imposed by s.113B of the 1997 Act.

Whilst establishing whether the interference was justified, the court had no difficulty in finding that the criminal records regime pursued a legitimate aim, one generally focused on protecting employers and children and enabling employers to make an assessment as to whether individuals’ credentials are appropriate for particular types of work. However, the court held in paragraph 37 of the judgment that the disclosure of all convictions and cautions relating to recordable offences was disproportionate to that aim, showing that the interference with Article 8 was not in fact justified.

Was the Rehabilitation of Offenders Act 1974 ultra vires?

Under s. 4 of the Act, the general rule (subject to a limited number of exceptions under s. 4(3) and (4)) is that a rehabilitated person is treated for all legal purposes as if he had never committed the offence which had originally led to the spent conviction or caution. The court held that articles 3 and 4 of the 1975 order (the 1974 Act) were ultra vires as they had been made incompatibly with Article 8. The respondents’ cautions represented an aspect of their private lives which should be protected by Article 8. Laws requiring a person to disclose his previous convictions or cautions to a potential employer constituted an interference with that right. The disclosures in the ECRCs also constituted Article 8 interferences, significantly endangering the respondents’ entry into their chosen careers. Lord Reed considered that s. 113A and 113B of the 1997 Act were incompatible with Article 8 because they fail to meet the requirement under the ECHR that any interference with the Convention right be “in accordance with law”. Overall, the court held that it was necessary for Parliament to identify the filtering mechanism which 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 proposed and the court declined to proscribe or provide guidance as to which would be applicable in any given set of circumstances. The judgment raised difficult questions for Parliament as to how to proceed, as well as for employers and others who wish to cite spent convictions or cautions as grounds for non-employment.

T & Anor v Secretary of State for the Home Department [2014] UKSC 35

Following on from this case, in June of this year in the case of T & Anor v Secretary of State for the Home Department, the Supreme Court upheld the Court of Appeal’s decision that the statutory criminal record-checking scheme breached Article 8. After the Secretary of State appealed to the Supreme Court, the judges unanimously dismissed the appeals against the Court of Appeal’s declaration of incompatibility in respect of the relevant primary legislation, namely the 1997 Act. The Secretary of State’s appeal against the declaration that the 1975 Order was ultra vires, however, was allowed as the 1975 Order was held to be inconsistent with the declaration of incompatibility in relation to the sections of the 1997 Act that govern the scheme. This position has been neatly summarised by Lord Wilson at paragraph 62 of the Supreme Court's judgment:

It follows that the Court of Appeal's declaration of ultra vires in relation to the 1975 Order was, apart from anything else, entirely inconsistent with its declaration of incompatibility in relation to the 1997 Act. As noted in para 53 above, it was a fundamental feature of the declaration of incompatibility that it would not affect the validity or continuing operation of the 1997 Act. Yet the declaration of ultra vires had precisely that consequence.

The relevant provisions did violate the respondents’ right to privacy, seriously affecting their entry into chosen professions. The interferences with the respondents’ Article 8 rights, it continued, were not “necessary in a democratic society”. 

R (L) v Chief Constable of Cumbria Constabulary [2013] EWHC 1555

Perhaps the ECRC’s most detrimental impact has been evidenced within the teaching profession. Even if the CPS has held that there is insufficient evidence to proceed with a prosecution, a teacher accused of sexual offences will find it considerably more difficult to escape the tainting effects of allegations raised. The important issue of whether the allegations will ultimately find their way into any ECRC was considered by the High Court in two key cases of 2013. In the first, R (L) v Chief Constable of Cumbria Constabulary, a teacher denied the accusation of ‘improperly propositioning' an 18 year old pupil in a bar. No criminal prosecution ensued and thus the High Court held that inclusion of related information in the ECRC was unlawful as it constituted a disproportionate interference with L’s right to privacy. The result of the disclosure would have “been as severe for L’s employment prospects as if he had been convicted of a serious offence of sexual misconduct...” and therefore would have been unjustifiable. Even if the allegations were rooted in fact, the actual risk to others represented by a single act towards a single individual in tightly definable circumstances, remained slight.

RK v (1) Chief Constable of South Yorkshire (2) Disclosure and Banning Service [2013] EWHC 1555

In the second, RK v (1) Chief Constable of South Yorkshire (2) Disclosure and Banning Service, RK had previously been acquitted of six counts of indecent assault and sexual activity with a child. Nine years later RK sought disclosure of a draft ECRC from the Constabulary. The draft included information about the allegations and referred to them as ‘offenses’. RK sought a judicial review of the draft certificate. Coulson J held that inclusion of this information was unlawful as it constituted a breach of RK’s right to privacy. Fundamental to the court’s judgment was the conclusion that the Constabulary had impermissibly treated the allegations as if they had been proven, notwithstanding the fact that RK had been acquitted.

A common aspect of both of these judgments is that, in the court’s view, the police had acted unlawfully by effectively suggesting that the allegations had been well-founded, despite the lack of any criminal conviction. In a sense, these judgments are unsurprising. After all it cannot be right for the police to suggest that an individual is guilty of an offence when they have not been convicted of any offence following a criminal prosecution.

R (AR) v Chief Constable of Greater Manchester Police & Secretary of State for the Home Department 2013 EWHC 2721

However, these judgments do not mean that it is always unlawful to disclose information about allegations if a conviction has not been made. In R (AR) v Chief Constable of Greater Manchester Police & Secretary of State for the Home Department, the CRB issued an ECRC highlighting the allegation of rape made against AR (anex-taxi-driver) in connection with an application made by the individual for a licence as a private-hire driver. The court rejected arguments to the effect that the police’s retention of the data was unlawful under Article 8 and, furthermore, that the police had acted unlawfully by not consulting AR prior to inclusion of the information within the ECRC. So far as data retention was concerned, the court held that the police had legitimate reasons for retaining the data both because it might have been relevant if further allegations were made against AR and also because other matters mightsubsequently arise involving the complainant.

All things considered, it is, without question, imperative to ensure that all employees who are proposing to work in close proximity to children or vulnerable adults are first subjected to some kind of  rigorous screening process. Individuals entrusted with the care or education of the most vulnerable citizens in society must themselves be entirely trustworthy and innocent of convictions both recent and relevant to the workplace they wish to occupy. However, the courts rulings in the aforementioned cases seem overwhelmingly to be the fair and proper outcomes of a just legal system. It is surely intolerable and indefensible to hinder an individual’s chances of employment if they have already been acquitted and proven innocent of the accused crime, irrespective of its nature. Similarly, if the individual has committed a completely unrelated and relatively trivial crime at a young age, this should ostensibly be rendered obsolete and inconsequential in the application process and have no further bearing on future employment opportunities. If, however, the potential employee has been accused of a more serious crime, such as rape or murder, regardless of whether they have been acquitted, the employer and those involved have the right to be alerted so that they can then make sensible assessments of risk and suitability before making final employment decisions with full possession of the facts. 

Further reading

R (T & others) v Chief Constable of Greater Manchester & others [2013]

T & Anor v Secretary of State for the Home Department [2014]

Anya Proops, Panopticon, Criminal records scheme incompatible with convention rights

Anya Proops, Panopticon, Haunted by ones past

Christopher Knight, Panopticon, Court of Appeal declares Criminal Records Regime incompatible

R (L) v Chief Constable of Cumbria Constabulary

RK v (1) Chief Constable of South Yorkshire (2) Disclosure and Banning Service

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Tagged: Criminal Law, Human Rights

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