In the case of R (o.t.a P & others) v. Secretary of State for Home Department & others ([2017] EWCA Civ 321)  the Court of Appeal upheld challenges to the system of the police retaining information about past misconduct. It held that the system, even after a re-boot in 2013 in response to an earlier successful challenge, remains non-compliant with Article 8. 

The  problem is well summarised by Leveson P in the first paragraph of the judgment, namely the interface between a system of rehabilitation of offenders and the minimisation of risk to the public caused by the employment of those with misconduct in their pasts.

The rules are complicated but to get employment involving, e.g., contact with children you may need to get a certificate of one of two kinds, a Criminal Record Certificate (CRC) or an Enhanced CRC (ECRC) – better known to many as a CRB check. An ECRC may include “soft intelligence” from police or others, so does not have to relate to a past conviction or similar. You can challenge both certificates on the grounds of inaccuracy, but in the case of an ECRC you can also ask the relevant chief of police to review the relevance of the information.

The challenge in T

The previous system for this was successfully challenged in T [2014] UKSC 35 and it is necessary to look at this before we see the battle lines in the present case.

The Supreme Court declared that it was incompatible with Art.8. The cases were well-chosen.

T had been “warned” for the theft of 2 bicycles when 11 (cue the pic). At 19, he wanted to enrol on a sports study course, whereupon the warnings were revealed.

At 41, JB had been cautioned for theft of a packet of false fingernails. 8 years later, her Job Centre told her that she had no chance of becoming a care worker because of this.

As Lord Reed explained, two questions arose under Art.8. Was any interference resulting from the scheme “in accordance with the law” – and was it “necessary in a democratic society”? The first question involved more than just saying that there was a scheme laid down by some black letter law somewhere. There had to be safeguards in the system enabling the proportionality of the interference in general to be adequately examined. The second question involved the determination of that proportionality question.

The majority in T held that the system was not “in accordance with the law” because of

the cumulative effect of the failure to draw any distinction on the basis of the nature of the offence, the disposal in the case, the time which has 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 a decision to disclose data…. [119]

The Supreme Court unanimously held that the scheme violated Article 8 rights on the grounds that, not being based on any rational assessment of risk, it went further than was necessary to accomplish the statutory objective, was disproportionate, and failed the test of being necessary in a democratic society: [50], [121] and [158].

The current system

Hence the statutory re-boot in the light of T which is the subject of this challenge.

The major changes in the new system are that not every spent conviction or caution has to be disclosed. The detail is at [11] and [12] of our case, but age (under or over 18) became relevant, as did the severity of the crime (assault occasioning ABH required disclosure), and the passing of a custodial sentence. The final category was any spent conviction where the person had more than one conviction. So this was disclosable for life.

The successful challenge to the new system

The tension, as often, in any such scheme is between one which enables individual consideration of a particular case (with the palaver which that may entail) and one which contains a bright line judgment between what should or should not be disclosed by the police.

The CA did not accept that every case required a mechanism for individual consideration of the facts ([41]-[42]). It also decided that the features listed by Lord Reed at [119] (set out above) – the nature of the offence, the disposal in the case, the time elapsed, and  the relevance of the data to the employment sought, and the absence of any independent review – were individually neither necessary or sufficient. But the less discrimination under the system which arises under the other features, the greater the need for some filter to ensure that the critical link to the public interest was not lost.

Not in accordance with the law

The CA’s central conclusion at [44] was that the multiple conviction rule and that the serious offence rule were not “in accordance with the law”

without a mechanism for refinement

because, for example, the two offence rule would apply irrespective of the nature of the offence, the disposal of the case, the time elapsed and the relevance to the employment. The serious offence rule was also insufficiently calibrated to Lord Reed’s other features.

Not necessary in a democratic society

This conclusion was enough to ensure the success of the generic challenge to the system. But in a far more nuanced and less conclusory discussion ([46]-[72], the CA turned to the features of a system which could meet the requirement for “necessity”. It was sceptical about some of the micro-analysis (“granular” in public-law speak) carried out by the judge (Blake J) in the G case (see [54]-[55]) as importing

an assessment of social policy which goes beyond that required to pass through the filter of what is proportionate for the purposes of Article 8

Ultimately, it was for the legislature, not the courts, to devise a system to meet the requirements of Art.8. But, as the CA observed, it would not necessarily be difficult to fashion a system which did not depend on individual review, but which would allow material which would not otherwise be included in a CRC to be included in a ECRC, and, thus, subject to possible challenge through the chief officer of police.

The CA also noted the changing systems for expunging cautions etc, but it pointed out the lack of a challenge to such decisions other than by way of judicial review.

But the legislature should not cop out completely when it carried out its further re-run:

 without some mechanism to ensure that disclosure is proportionate and linked to the protection of the public…., it is difficult to see how challenges of the type raised in these cases can be avoided. It is not that the concept of the revised scheme necessarily offends Article 8, but it may be that in its operation in individual cases, it does so.

If left to the courts as presently devised, it will generate many challenges which will require resolution on a case by case basis:

such an approach cannot possibly be in the public interest.

The individual claimants’ challenges

The four claimants were

(i) P, who committed two shoplifting offences in 1999, when suffering from undiagnosed schizophrenia. She (who was then homeless) had failed to appear at court (itself a crime under the Bail Act) and was convicted of one of the theft offences – so two offences. 15 years later, she wanted to be a care assistant;

  • The CA held that the multiple conviction rule was disproportionate in its current automatic form to the interference with P’s life. It did not generate interests of public safety so as even to make it arguably necessary.

(ii) G, who when 13 had had consensual anal intercourse with two boys aged 9 and 10, and he was reprimanded in 2006 by the police. In 2011, he worked for an employment agency in a library of a local college. He was asked for a ECRC because his work involved contact with children.

  • this challenge also succeeded; disclosure was not necessary, given G’s age at the time of offending. If he sought an ECRC, it might be justifiable to include this as soft intelligence, but then he could potentially challenge it to the police on the grounds of irrelevance

(iii) W, who when 16 in 1982 was convicted of ABH, for which he received a conditional discharge. At 47, he wanted to teach English as a second language.

  • unsurprisingly, this was held to be disproportionate to have to disclose this conviction.

(iv) Ms Krol who was seen hitting her 3 year old daughter in the course of a homework “fight”. She was cautioned for ABH.

  • rather more to this story. There were later allegations of violence, of her giving a false name to the police to prevent knowledge of earlier involvement with social services, and ultimately the child was subject to the making of a care order in favour of the Council. Retention of the caution on the record was held by the CA to be proportionate.

Remedy 

In P’s case, the judge had declared that the relevant statutory order cannot be read or given effect in a way which is compatible with P’s Art.8 rights. P wanted the CA to go further and delete the two conviction rule from the order on the basis that it was ultra vires or alternatively that the whole order was ultra vires.

The CA was unwilling to take either route. The declaration was claimant-specific, as it should be. The vice with the order was not central to the nature of the order, but as the CA put it at [122] at the margins.

Conclusion

The underlying issue is of considerable interest, but the general human rights point of importance is the insistence (in line with T) that the requirement to be “in accordance with the law” under Art.8 carries a good deal more of an obligation on the state than just to refer to a law. The law requires that its proportionality to be capable of examination – so some element of challengeability, in the broadest of senses.

This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks.