On 18 June 2014 the Supreme Court handed down judgment in R (T) v Secretary of State for the Home Department  UKSC 35. The case concerns the mechanism governing criminal records checks (‘CRCs’) and enhanced criminal record checks (‘ECRCs’), and what an applicant is required to disclose to a potential employer. As such, the case has important ramifications for both employers and job applicants. It is also the latest development in a long running saga concerning criminal record checks and an individual’s ability, and indeed right, to put the past behind them.
The judgment provides important guidance regarding article 8 and the scope of ‘private information’, and what will be considered ‘in accordance with the law’ for the purposes of article 8 (2). However, the judgment unfortunately leaves considerable uncertainty for those facing dismissal for failing to provide disclosure of past convictions or cautions, and those facing potential criminal liability for failure to disclose.
The statutory scheme
As explained by Lord Reed at [67-68], the common law position is that if a person applies for a job, the employer is entitled to ask relevant questions, and the applicant is obliged to answer them truthfully. If an individual lies about his past then the resultant contract for employment will be regarded as fraudulent, and a person who obtains employment by means of deceit is in principle liable to prosecution.
The Rehabilitation of Offenders Act 1974 modified the common law position, and provided that individuals were not required to disclose spent convictions and cautions. However, the Rehabilitation of Offenders 1974 (Exceptions) Order 1975 suspends the protection of the 1974 Act in situations where questions are asked in order to assess a person’s suitability in respect of various professions, offices of employment (including working with children) and licenses. It also suspends the provision preventing dismissal for a failure to disclose. In effect the 1974 Act altered the common law position in relation to the rights and obligations of employers and persons seeking employment. The 1975 order limits the effect of the 1974 Act, and in consequence preserves the common law position in relation to activities preserved within its scope.
Part V of the Police Act 1997 creates a statutory scheme for the disclosure of criminal records. Section 113A and 113B of the Police Act 1997 have the effect of enabling employers to obtain access to records when considering applications falling within the scope of the 1975 Order. The sections require the Disclosure and Barring Service to issue a certificate when one is required for the purposes of “an exempted question”; i.e. a question falling within the scope of the 1975 Order. In such a situation disclosure is made under section 113A of every “relevant matter” on the Police National Computer. A relevant matter is any conviction or caution (either spent or unspent), and any additional information believed by the chief officer to be relevant.
In T, the first respondent’s ECRC disclosed that he had received two warnings from the police when he was 11 years old in relation to the theft of two bicycles. The second respondent’s (JB) certificate disclosed a caution given for shoplifting of a packet of false nails in 2001. Both brought actions for judicial review, claiming that the disclosures were incompatible with the right to private life under ECHR, article 8. The Court of Appeal held that Part V of the Police Act 1997 and the 1975 Order were incompatible with article 8, and that the 1975 Order was ultra vires of the 1974 Act.
Following the decision in the Court of Appeal, in May 2013 the government amended the scheme. The protection of the 1974 Act was extended in the case of a “protected caution” and a “protected conviction”. A caution is protected if it was given otherwise than for any of 14 listed offences and if at least six years have passed since the date of the caution (or two years if the person was then a minor). A conviction is protected if it was imposed otherwise than for any of the listed offences, if it did not result in a custodial sentence; if the person has not been convicted of any other offence and if at least 11 years have passed since the date of the conviction (five and half years if he was a minor). The new regime does not apply to questions asked in order to assess suitability for certain types of employment.
The Supreme Court upheld the Court of Appeal’s judgment in part, but disagreed with the Court of Appeal’s analysis of the appropriate remedy regarding the 1975 Order.
Part V of the 1997 Act was not in accordance with the law
The judgment provides important guidance as to what is considered necessary for legislation to be ‘in accordance with the law’ for the purposes of article 8 (2). The majority found that Part V of the 1997 Act was not in accordance with the law. Lord Wilson, in the minority, disagreed.
Lord Wilson held that the regime for the issue of CRCs and ECRCs was sufficiently foreseeable and accessible for it to be in accordance with the law as interpreted in Gillan v Commissioner of Police for the Metropolis  UKHL 12  2 AC 307, and Gillan v United Kingdom (2010) 50 EHRR 1105 at . In referring to MM v United Kingdom, app no 24029/07, which held that a similar scheme in place in Northern Ireland was not in accordance with the law, Lord Wilson held that the objections to the scheme should have fallen to be considered under the principle of necessity, to which there is some margin of appreciation, rather than under the principle of legality . Lord Wilson did hold however that the operation of the scheme was disproportionate, on the grounds that when a type of request was specified “there had to be disclosure of everything in the kitchen sink” .
Lord Reed, with whom Lord Neuberger, Lady Hale and Lord Clarke agreed, held that the scheme did fall foul of the principle of legality. Lord Reed referred to MM and the fact that when considering if interference was in accordance with the law the Strasbourg court considered that domestic law “must afford adequate legal protection against arbitrariness” . Lord Reed went on to state:
“Put shortly, legislation which requires the indiscriminate disclosure by the state of personal data which it has collected and stored does not contain safeguards against arbitrary interference with Article 8 rights.” 
“In order for interference to be in accordance with the law, there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined”. 
The cumulative effect of the fact that there was no distinction drawn on the basis of the nature of the offence, the disposal of the case, no consideration of the time which had elapsed since the offence took place or the relevance of the data to the employment sought, and the absence of any mechanism for independent review of the decision to disclose data under section 113A meant that the legislation was not in accordance with the law.
Cautions represent an aspect of an individual’s private life
Lord Wilson confirmed that the cautions issued to T and JB represented an aspect of their private life . Referring to L v Commissioner of Police of The Metropolis (Secretary of State for the Home Department intervening) 2009 UKSC 3  1 AC 410, Lord Wilson stated:
“Building on the comments in these main judgments in the L case the Court of Appeal in the present cases held that, in that a caution takes place in private, the receipt of a caution was part of a person’s private life from the outset. The proposition calls for careful thought but in the end I find myself agreeing with it. My receipt of a caution, whenever received, is a sensitive, certainly embarrassing and probably shameful part of my history, which may have profound detrimental effects on my career; and the unchallengeable fact that I did commit the offence for which I was cautioned makes it no less sensitive but, on the contrary, more sensitive” 
At  Lord Wilson went on to suggest that the same principle should apply to spent convictions.
It was arguable that the state’s retention of data about cautions, even prior to disclosure, amounts to an interference with article 8.
The Secretary of State conceded that the ECRCs, once issued, were both capable of and did interfere with the applicants’ private life. Lord Wilson however referred to S v United Kingdom (2009) 48 EHRR 1169, where the Grand Chamber held that the applicants’ reasonable concern about future use was relevant to whether interference had already arisen. The material in that case was highly sensitive. The Court left open whether Bouchacourt v France App no 5335/06 17 December 2009 should be followed, which held that retention of data relating to private life represented interference regardless of sensitivity. 
The classification of an obligation as positive or negative will not be determinative of the challenge.
Following Dickson v United Kingdom (2008) 46 EHRR 927, irrespective of whether the suggested obligation was positive of negative, the core issue was whether a fair balance had been struck between the competing interests  and .
The most problematic part of the judgment is that concerning remedies. The Court endorsed the Court of Appeal’s declaration of incompatibility of the 1997 Act, and Lord Wilson commented that the “beauty’ of a declaration was that while it alerted Parliament to the fact that legislation might operate incompatibly and required amendment it did not affect the validity or continuing enforcement of the Act .
With regard to the 1975 Order it was not as straightforward. Lord Reed analysed Part V of the 1997 Act as concerned with the use by the state of data that it collects and stores. The 1975 Order is on the other hand concerned largely with relationships between employers and potential employees .
It was clear that requiring persons to disclose previous convictions or cautions to an employer constitutes an interference with article 8 . Lord Reed found that the interference in the circumstances had not been necessary in a democratic society, as there was no rational connection between the disclosure of minor dishonesty as a child and the assessment of suitability as an adult for contact with young children .
The question of whether the 1975 Order was in accordance with the law was more difficult. It was not possible to extend the finding of unlawfulness with regard to the 1997 Act, as there are particularly strict standards for data collection by the state . Due to the structure of the statutory scheme, the 1997 Act is dependent upon the 1975 Order, as certificates can only be issued for the purposes of an “exempted question”, defined with regard to the 1975 Order. If the Order is ultra vires then the scheme is inoperable (Lord Wilson at  and Lord Reed at ).
Therefore, what is the appropriate remedy? The Court cannot issue an order of incompatibility under section 4 of the Human Rights Act 1998 with regard to the 1974 order , nor can it declare that the Secretary of State acted unlawfully in failing to cause it to be amended so as to render it compatible with article 8 ( &). Not could it declare the Order ultra vires as the whole scheme would collapse. Lord Reed therefore concluded that in the circumstances no remedy was necessary with regard to the 1975 Order in T’s case, as the harm had been as a result of the 1997 Act rather than the 1975 Order, and he could be regarded for the purposes of the Convention as having obtained just satisfaction by reason of the courts’ acceptance that his complaint was well-founded, and the resultant amendment of the Order .
While the judgment provides important guidance regarding the scope of article 8, the 1975 Order is left entirely unaffected. While the particular situation of T is remedied, the wider questions surrounding the 1975 Order are not. It is clear that the Court regarded the operation of the Order to constitute interference, and the implication from the judgment is that the concerns were such that if it were possible they may have made a declaration of incompatibility or a declaration of some form. Instead, on the particular facts of the case they found no remedy necessary. This leaves the wider issues surrounding the 1975 Order open. It is clear the Court had concerns as to its operation but felt unable to grant the appropriate remedy because of the structure of the scheme.
The uncertainty regarding the 1975 Order means that there are a number of situations in which the legal position is uncertain. For example, it is unclear whether a person can be prosecuted on the basis of a failure to disclose previous convictions where it was the 1975 Order that required disclosure of those convictions. It is also unclear whether disciplinary action can be taken by an employer against a person for failure to disclose previous convictions where it was the 1975 Order that required disclosure of those convictions.
In both cases arguments are available that the 1975 Order was ultra vires and/or the requirement to disclose details of the previous convictions violated article 8. On the current judgment it is also unclear whether the amendments are sufficient to ensure compliance with article 8.
Anita Davies is a trainee barrister at Matrix Chambers