Common sense level
Labour & European Law Review Weekly Issue 381 06 August 2014
The law states that the police must disclose spent convictions and cautions (no matter how minor) if an individual wants to work with vulnerable groups such as children or the elderly. In R (on the application of T and anor) v Secretary of State for the Home Department and anor, the Supreme Court held that this statutory vetting system was a breach of Article 8 of the European Convention on Human Rights.
This conjoined appeal concerned T who was given two cautions by the police for stealing two bicycles when he was 11. The warnings were disclosed under Part V of the Police Act 1997 when he applied for a job with a football club which required him to obtain an enhanced criminal record certificate (ECRC); and again when he applied for enrolment on a sports studies course which involved contact with children.
In 2001, the police issued a caution to JB (then aged 41) for stealing a packet of false fingernails. After completing a Job Centre training course for work in the care sector, she was asked to obtain an ECRC. When the caution was disclosed, the course provider informed her she could not work in the care centre.
Neither individual had any other criminal record. Both claimed that disclosing the cautions represented a violation of Article 8 (right to respect for their private life) of the European Convention on Human Rights.
Under the Rehabilitation of Offenders Act 1974, people are not required to disclose criminal convictions that are deemed to be “spent”. However, the subsequent Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 limited the circumstances in which people were exempt from answering questions relating to their suitability for certain professions and for entry into certain types of employment.
The Police Act 1997 then created a statutory scheme for disclosing criminal records, allowing employers and regulatory bodies to have access to records falling under the 1975 Order. In those situations, the police have to disclose everything recorded on the Police National Computer, including cautions.
Court of Appeal decision
The Court upheld T’s appeal against the dismissal of his claim for judicial review. It declared that the disclosure provisions of the 1997 Act were incompatible with Article 8 “insofar as they require the disclosure of all convictions and cautions that are recorded on central records on certificates”. It also held that the 1975 Order was incompatible with Article 8.
It granted JB permission to apply for judicial review, which it upheld and again declared that the disclosure provisions of the 1997 Act were incompatible with Article 8 for the same reasons as T.
Supreme Court decision
The Supreme Court held that legislation which requires the indiscriminate disclosure by the state of personal data which it has collected and stored does not contain adequate safeguards against arbitrary interferences with Article 8 rights.
Nor could disclosing the cautions be regarded as necessary in a democratic society. In the case of T, disclosing the warnings for dishonesty which had been given to him when he was a young child bore no rational relationship to the aim of protecting the safety of children with whom he might come into contact. In the case of JB, the impact upon her private life of disclosing the caution for minor dishonesty, many years earlier, was disproportionate to its likely benefit in achieving the objective of protecting people receiving care.
Finally, the Court held that the criminal records system should be scaled back to “common sense levels”.