European Court of Human Rights

 

Communicated on 17 December 2014

 

FOURTH SECTION

Application no. 11727/12
G.H.
against the United Kingdom
and 3 other applications
(see list appended)

STATEMENT OF FACTS

The first applicant, G.H., is a British national, who was born in 1993 and lives in Newquay. The second applicant, C.C., is a British national, who was born in 1963 and lives in London. He is represented before the Court by Ms L. Allen of DWFM Beckman Solicitors, a lawyer practising in London. The third applicant, M.C., is a British national, who was born in 1955 and lives in Solihull. The fourth applicant, D.S., is a British national who was born in 1964 and lives in Croydon.

The President granted the applicants’ requests for their identities not to be disclosed to the public (Rule 47 § 4).

A.  The circumstances of the cases

The facts of the case, as submitted by each applicant, may be summarised as follows.

1. The first applicant

In July 2006, an allegation was made against the first applicant by the mother of a four-year-old boy. She reported to the police that the boy had disclosed that he had been sexually abused by the first applicant. Upon interview, the boy alleged that the first applicant had kissed him, touched him intimately and anally raped him on four occasions. A medical examination was inconclusive. The first applicant denied the allegations when arrested and interviewed by the police. Upon consideration by the Crown Prosecution Service, the decision was taken to take no further action due to insufficient evidence. The first applicant was thirteen at the time.

In May 2008, when the first applicant was fifteen, the police were contacted to report indecent photographs of children on his laptop. In August 2008 he admitted looking at pornography on-line, including video and photographic images of children. He was given a reprimand by the police for the offence of possessing an indecent photography or pseudo-photograph of a child. In August 2010, aged seventeen, the first applicant was given a warning by the police for an offence of theft from his employer.

In January 2012, the first applicant’s place on a course at his local college was withdrawn as a result of an “Enhanced Criminal Records Check” which disclosed all the above information to the college. Although the first applicant has not made it clear what the exact nature of his course was, it can be surmised that it involved work placements in a care setting.

The first applicant has applied to one of the relevant police forces for the deletion of his data from the Police National Database. He does not make it clear what the outcome of this was in his application. He also complained to the Criminal Records Bureau and the Minister for Justice through his local Member of Parliament who said they could not help him.

2. The second applicant

In 1978, when he was fifteen, the second applicant was convicted on twelve counts of arson and two counts of theft. The second applicant now works as a medical practitioner and sits as an assistant coroner. He complains that his disclosure obligations interfere with his ability to carry out this work.

3. The third applicant

In August 2007 the third applicant was convicted of failing to stop after a road traffic accident. She was fined GBP 200 and her driving licence was endorsed with five penalty points.

In 2013, the third applicant applied for a teaching job through a recruitment agency who requested a Criminal Records Bureau check. When the check disclosed the above conviction, the offer of employment was withdrawn.

On 27 January 2013, the third applicant lodged a complaint with the Independent Police Complaints Commission about the conduct of the police that led to her conviction and asked them to clear her name. That letter was passed onto the Professional Standards Department of the West Midlands Police who, by letter of the 7 February 2013, replied that as she had pled guilty to the offence they could not expunge the information on her record. The third applicant denies having pled guilty.

4. The fourth applicant

In May 1990, the fourth applicant was given a six month unconditional discharge for damaging property. In 2010, her then employer, a London NHS Trust, requested their employees to carry out a Criminal Records Bureau check. The unconditional discharge was disclosed and the fourth applicant lost her job working with vulnerable people. Since then, she has been unable to find employment in the care sector, participate in voluntary and community roles or undertake further education and training.

On 13 July 2012, the fourth applicant made a request to the Metropolitan Police requester the destruction of her fingerprints, DNA and the supporting conviction entry on the Police National Computer. On 15 July 2012, the Metropolitan Police refused her request and advised the fourth applicant that the only way to appeal was through the European Court of Human Rights.

B.  Relevant domestic law and practice

The relevant domestic law and practice as applied up to 2010 is set out in the Court’s judgment in M.M. v. the United Kingdom, no. 24029/07, ECHR 2012.

Subsequent developments

On 29 January 2013, the Court of Appeal in R (T and others) v. Secretary of State for the Home Department and another [2013] 1 WLR 2515 found that the regime of disclosure under the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 violated the right to respect for private life guaranteed by Article 8 of the Convention.

Following the Court of Appeal judgment, the Government laid two orders before Parliament to introduce a filtering mechanism for disclosing conviction data. Those orders, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (SI 2013/1198) and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI 2013/1200), came into force on the 29 May 2013. Under the new rules, an adult conviction will not be disclosed if the following conditions apply: (1) eleven years have elapsed since the date of conviction; (2) it is the person’s only offence; (3) it did not result in a custodial sentence; and (4) it was not for a specified offence (mainly offences of violence, sexual offences and other offences relevant to safeguarding children and vulnerable persons). An adult caution will not be disclosed if six years have elapsed since the date of caution and it is not for one of the specified offences. For those under 18 on the date of conviction, the same rules apply as for adult convictions, but the time that must elapse is five and a half years. For those under 18 on the date of caution, the same rules apply as for adult cautions, but the time that must elapse is two years.

The new rules apply both to the criminal records certificate scheme run under Part V of the Police Act 1997 (“the 1997 Act”) (so that no conviction or caution falling within the new rules will be included on a certificate) and the individual duty to disclose convictions when asked by an employer under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (“the 1975 Order”) (so that it is lawful for an individual asked by an employer about his criminal record not to disclose any conviction or caution included within the new rules).

On 18 June 2014, the Supreme Court delivered judgment in R (T and another) v. Secretary of State for the Home Department and another [2014] UKSC 35. Lord Reed, writing for the majority, found in relation to the 1997 Act that in order for the regime to be “in accordance with the law,” there need to exist safeguards that ensure that the national authorities have addressed the issue of the necessity for the interference and which allow the proportionality of an interference to be adequately examined. Since the 1997 Act lacked any such safeguards, they held that this Court was correct to conclude in M.M. that the scheme was not in accordance with the law.

The majority also found that, in any event, the scheme could not be regarded as necessary in a democratic society. The disclosure of warnings for dishonesty either bore no rational relationship to the 1997 Act’s aim of protecting the safety of young children or constituted a disproportionate interference relative to the likely benefit.

In relation to the 1975 Order, the Supreme Court did not address whether it could be considered in accordance with the law or not since the question was less straightforward than for the 1997 Act and it was unnecessary in the instant case to answer it. Instead, the Supreme Court held that the 1975 Order failed the test of meeting a “legitimate aim”. The Supreme Court could not find any rational connection between minor dishonesty as a child and safeguarding children and vulnerable persons.

Lord Wilson dissented in part and concurred in part. He considered that, by taking into consideration the absence of any filtering mechanism, this Court had wrongly allowed questions of necessity to go to legality of the scheme in M.M. The complaints in M.M. about the lack of clarity of the common law powers of the police had no analogue in the present case and there was independent review, thus passing the test of legality. Consequently, he would have held the 1997 Act and the 1975 Order to be lawful, but not necessary in a democratic society.

The Supreme Court upheld a declaration of incompatibility against the 1997 Act. No judicial remedy was granted against the 1975 Order because it was unnecessary in the instant case, since the harm flowed from the 1997 Act, and had been superseded by the 2013 Regulations in any event. The Supreme Court did not address the compatibility of the 2013 Regulations’ filtering mechanism with Article 8.

COMPLAINTS

The applicants complain under Article 8 of the Convention about the retention and disclosure of their criminal records. The third applicant also complains under Article 7 of the Convention that she has been punished twice for the same offence and under Article 14 that she was the victim of racial discrimination by the police.

 




 

 

QUESTIONS TO THE PARTIES

 

1. Have all or any of the applicants suffered an interference with his or her right to respect for private life? Did such an interference occur when their criminal records data was (i) disclosed; (ii) retained with a risk of disclosure or an obligation on the applicant to disclose it in response to a question by an employer; (iii) retained with no risk of disclosure or obligation to disclose?

 

2. With reference to the national law as it applied to the applicants both before and after the amendments which came into force in May 2013, if there was an interference, did it pursue a legitimate aim? Was it “in accordance with the law” and “necessary in a democratic society”?




 

 

APPENDIX

 

No.	Application no.	Case title	Lodged on	Represented by
1.	11727/12	G.H. v. the United Kingdom	06/02/2012
2.	70988/12	D.S. v. the United Kingdom	25/09/2012
3.	77481/12	C.C. v. the United Kingdom	30/11/2012	Ms L. Allen of DWFM Beckman Solicitors
4.	51220/13	M.C. v. the United Kingdom	04/08/2013