QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE CARR
| R (on the applications of P and A)
|- and -
|SECRETARY OF STATE FOR JUSTICE
SECRETARY OF STATE FOR THE HOME DEPARTMENT
CHIEF CONSTABLE OF THAMES VALLEY POLICE
Kate Gallafent QC and Naina Patel (instructed by the Government Legal Department) for the Defendants
The Interested Party did not appear and was not represented
Hearing date: 8 December 2015
Crown Copyright ©
Lord Justice McCombe:
(B) The Revised Statutory Scheme and its Background
" "relevant matter"… means—
(a) in relation to a person who has one conviction only:
(i) a conviction of an offence within subsection (6D);
(ii) a conviction in respect of which a custodial sentence or a sentence of service detention was imposed; or
(iii) a current conviction.
(b) in relation to any other person, any conviction;
(c) a caution in respect of an offence within subsection 6(D);
(d) a current caution".
"1. Is the conviction defined as minor? If not then disclose.
2. Does the individual have a single minor conviction? If not then disclose.
3. Was the single minor conviction received before the person was 18? If yes then the conviction will not be disclosed if it is spent and more than six months old.
4. Was the single minor conviction received after the person was 18? If yes then the conviction can be filtered out if it is spent and it is more than 3 years old."
For the Defendants, it is also pointed out that Ms Mason recommended caution at the initial stages of filtering, by setting the bar, at the initial stage, at one single conviction (as was ultimately adopted in the revised scheme). The report included the following passage:
"A threshold pertaining to the number of convictions, cautions, warnings, and reprimands defined as minor should be applied. In the first instance, this should be set at 1 (one). This would allow individuals to be given 'a second chance' where a conviction is defined as minor and it meets the time definition for filtering."
(C) Background Facts of the Claimants' cases
(C) Summary of the Claimants' Challenge to the new Statutory Scheme and of the Defendants' Opposition to the Challenge
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
(D) The Cases
"In my view the Secretaries of State raise a legitimate concern that issues which, when properly analysed, fall to be resolved in the ECtHR by reference to the principle of necessity, and therefore to attract extension to the member state of the margin of appreciation should not instead be resolved by reference to the principle of legality. ... I take the view in respectful disagreement with the other members of this court, that the 1997 Act does not fall foul of the principle of legality. The Court of Appeal was in my view right to decline to conclude, even in the light of the MM case, that either the 1997 Act or the 1975 Order did so; and counsel for T and B have been wise not to seek to uphold any part of its decision by reference to the principle of legality. The complaint in the MM case of an absence of a clear legislative framework in Northern Ireland and of lack of clarity in the contours of the common law powers of its police has no analogue in the present cases; and the instant proceedings demonstrate independent review of a most exacting character. Lord Reed JSC suggests in para 114 that the question whether there are safeguards which enable the proportionality of the interference adequately to be examined affects legality, whereas the question whether the interference was proportionate affects necessity. But in my view the ECtHR's third point logically falls within the latter; and I deprecate its seepage into the former. "
"In this regard the court, like Lord Hope DPSC in R (L) v Comr of Police for the Metropolis (Secretary of State for the Home Department intervening)  1 AC 410, para 27, emphasises that although data contained in the criminal record are, in one sense, public information, their systematic storing in central records means that they are available for disclosure long after the event when everyone other than the person concerned is likely to have forgotten about it, and all the more so where, as in the present case, the caution has occurred in private. Thus as the conviction or caution itself recedes into the past, it becomes a part of the person's private life which must be respected: para 188
The court notes and agrees with the comments of Lord Hope DPSC and Lord Neuberger MR in R (L), at paras 43 and 73, to the effect that the fact that disclosure follows on a request by the data subject or with her consent is no answer to concerns regarding the compatibility of disclosure with article 8 of the Convention. Individuals have no real choice if an employer in their chosen profession insists, and is entitled to do so, on disclosure: para 189"
"193. The requirement that any interference must be 'in accordance with the law' under Article 8 §2 means that the impugned measure must have some basis in domestic law and be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity and scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82; Rotaru, cited above, §§ 52 and 55; Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008; and S. and Marper, citied above, § 95)"
"197. The Court also notes that the Supreme Court in R (F and another) recognised the need for a right to review in respect of the lifelong notification requirements imposed pursuant to sex offenders' legislation (see paragraph 120 above). In doing so, Lord Phillips noted that no evidence had been placed before the court that demonstrated that it was not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who posed no significant risk of reoffending. In light of the ensuing uncertainty, he considered that the imposition of notification requirements for life was not proportionate. The Court is of the view that similar considerations apply in the context of a system for retaining and disclosing criminal record information to prospective employers."
"200. ... In R(L), Lord Hope noted that in 2008/2009 almost 275,000 requests were made for ECRCs alone (see paragraph 105 above). This number is significant and demonstrates the wide reach of the legislation requiring disclosure. As Lord Neuburger indicated, even where the criminal record certificate records a conviction or caution for a relatively minor, or questionably relevant, offence, a prospective employer may well feel it safer to reject the applicant (see paragraph 108 above; see also the views expressed in the Divisional Court in R (Pinnington), at paragraph 87 above). The Court agrees with Lord Neuberger that it is realistic to assume that, in the majority of cases, an adverse criminal record certificate will represent something close to a 'killer blow' to the hopes of a person who aspires to any post which falls within the scope of disclosure requirements (see paragraph 11 above).
201. It is against the backdrop that the lawfulness of the measures for retention and disclosure of criminal record data, and in particular the adequacy of the safeguards in place, must be assessed."
"204. Regarding any possible future disclosure of the applicant's caution data, the Court observes that there is now a statutory framework in place for disclosure of criminal record information to prospective employers. Pursuant to the legislation now in place, caution data contained in central records, including where applicable information on spent cautions, must be disclosed in the context of a standard or enhanced criminal record check. No distinction is made based on the seriousness or the circumstances of the offence, the time which has elapsed since the offence was committed and whether the caution is spent. In short, there appears to be no scope for the exercise of any discretion in the disclosure exercise. Nor, as a consequence of the mandatory nature of the disclosure, is there any provision for the making of prior representations by the data subject to prevent the data being disclosed either generally or in a specific case. The applicable legislation does not allow for any assessment at any stage in the disclosure process of the relevance of conviction or caution data held in central records to the employment sought, or of the extent to which the data subject may be perceived as continuing to pose a risk such that the disclosure of the data to the employer is justified."
"206 ... It further refers to the absence of any mechanism for independent review of a decision to retain or disclose data, either under common law police powers or pursuant to Part V of the 1997 Act. Finally, the Court notes limited filtering arrangements in respect of disclosures made under the provisions of the 1997 Act: as regards mandatory disclosure under section 113A, no distinction is made 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.
207. The cumulative effect of these shortcomings is that the Court is not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicant's private life have not been, and will not be, disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicant's caution data accordingly cannot be regarded as being in accordance with the law. There has therefore been a violation of Article 8 of the Convention in the present case. This conclusion obviates the need for the Court to determine whether the interference was 'necessary in a democratic society' for one of the aims enumerated therein."
"The applicant did not make any submissions as to whether the interference was lawful. The government contended that the interference was in accordance with the law".
This brevity of treatment of the legality issue under Article 8.2, in submissions before the court, may have reflected a traditional neglect, by UK applicants and respondents alike (it seems at their peril), of the requirement that an interference with Article 8 rights must be "in accordance with the law" and of the width of that concept in European jurisprudence. It may be that the decision in T will have halted that neglect.
"113. ... Put shortly, 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.
114. This issue may appear to overlap with the question whether the interference is 'necessary in a democratic society': a question which requires an assessment of the proportionality of the interference. These two issues are indeed iner-linked, as I shall explain, but their focus is different. Determination of whether the collection and use by the state of personal data was necessary in a particular case involves an assessment of the relevancy and sufficiency of the reasons given by the national authorities. In making that assessment, in a context where the aim pursued is likely to be the protection of national security or public safety, or the prevention of disorder or crime, the court allows a margin of appreciation to the national authorities, recognising that they are often in the best position to determine the necessity for the interference. As I have explained, the court's focus tends to be on whether there were adequate safeguards against abuse, since the existence of such safeguards should ensure that the national authorities have addressed the issue of the necessity for the interference in a manner which is capable of satisfying the requirements of the Convention. In other words, in order for the 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. Whether the interference in a given case was in fact proportionate is a separate question.
115. The criticism that the court in MM did not allow for any margin of appreciation is therefore misplaced. Whether a system provides adequate safeguards against arbitrary treatment, and is therefore 'in accordance with the law' within the meaning of the Convention, is not a question of proportionality, and is therefore not a matter in relation to which the court allows national authorities a margin of appreciation."
"That judgment establishes, in my opinion persuasively, that the legislation fails to meet the requirements for disclosure to constitute and interference 'in accordance with the law'. That is so, as the court explained in MM, 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 under section 113A."
Thus, Lord Reed concluded that the interference with Article 8 rights represented by the old statutory scheme was not "in accordance with the law" and (with the majority) dismissed the appeal against the declaration of incompatibility of the relevant sections of the 1997 Act that had been made in the Court of Appeal.
"121. ... In the case of the respondent T, the disclosure of 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, as an adult, he might come into contact. In the case of the respondent B, the impact on her private life of the disclosure of her caution for minor dishonesty, many years earlier, was disproportionate to its likely benefit in achieving the objective of protecting people receiving care."
"41. Nevertheless the nature of T's and B's attack on the regime is obvious. It is that it operated indiscriminately. The exception (so the argument goes) from the eradication for practical purposes of certain entries from a person's record in accordance with the 1974 Act should be bounded by two sets of rules: rules which specify the type of request which should justify some disclosure and rules which identify the entries which should then be disclosed. The regime certainly contained rules of the former character. But there were none of the latter character. If the type of request was as specified, there had to be disclosure of everything in the kitchen sink. There was no attempt to separate the spent convictions and the cautions which should, and should not, then be disclosed by reference to any or all of the following: (a) the species of the offence; (b) the circumstances in which the person committed it; (c) his age when he committed it; (d) in the case of a conviction, the sentence imposed on him; (e) his preparation or otherwise of further offences; (f) the time that elapsed since he committed the offence; and (g) its relevance to the judgment to be made by the person making the request. The case of T is held up as an egregious example of the flaws in the regime. His theft of two bicycles before he even became a teenager was disclosed in connection with his proposed participation in sporting activities with children, to which (it is said) it had no conceivable relevance; indeed entries reflective of childish error should be a particular candidate for total elimination in the interests (in words of article 40 of the UN Convention on the Rights of the Child 1989) of 'promoting the child's reintegration and the child's assuming a constructive role in society'".
"…convincingly demonstrates the complexities of developing a satisfactory filter, with which the government was apparently continuing to wrestle until (so it seems to have considered) its hand was forced into making the 2013 amendments".
"It is easy to conclude that, of the above authorities referable to bright-line rules, the F case is closest to the present. The three situations in which interference was justified by bright-line rules related to complex areas of judgment in which it was far from obvious that a more calibrated system could operate more satisfactorily. The F case, like the present cases, addressed a regime which condemned people to suffer, like an albatross which they could never shake off, permanent adverse consequences of ancient wrong-doing notwithstanding completion of the ostensible punishment (if any) and irrespective of its continuing significance. Nor, to take the present cases, can the Secretaries of State contend that it is impossible to devise a more calibrated system for identifying material which should be the subject of disclosure under the 1997 Act and the 1975 Order. For, in introducing the 2013 amendments, they duly advised it! Indeed back in 2010 the Secretary of State for the Home Department commissioned Sunita Mason's review. The Secretaries of State convincingly protest that Sunita Mason's commission was not born of any acceptance that the regime which then existed violated rights under article 8. They point out, more broadly, that the fact that another, more specific, regime might be able to be devised does not, of itself, render the contested regime disproportionate: Wilson v First County Trust Ltd (No2)  1 AC 816, para 70. But it was the Secretary of State for the Home Department who chose to describe Sunita Mason's remit as being to scale back the criminal records system (obviously including disclosure under the 1997 Act) 'to common sense levels'".
"The Secretaries of State say, second, that the regime reflected a conclusion by Parliament that it was preferable to make the prospective employer or other registered person the judge of the relevance of the disclosure to his decision. Rely on him (they say) to sift the wheat from the chaff. But will he do so? In these days of keen competition and defensive decision-making will the candidate with the clean record not be placed ahead of the other, however apparently irrelevant his offence and even if otherwise evenly matched? More fundamentally, the regime reflects an exception to the eradication of the offence under the 1974 Act and it is the fact, or even the potentiality, of disclosure, whatever its ultimate consequences, which causes the interference and for the person creates, as a minimum, embarrassment, uncertainty and anxiety."
"The question then arises whether the interference with the right to respect for private life resulting from the 1975 Order is justifiable under article 8.2... This question whether the interference is 'in accordance with the law' appears to me to be less straightforward, and it is unnecessary to answer it. The conclusion reached in relation to the 1997 Act cannot automatically be extended to the 1975 Order, since the question whether the domestic law affords adequate safeguards against abuse must be judged by reference to the degree of intrusiveness of the interference being considered. As I have explained, particularly strict standards apply in relation to the collection, storage and use by the state of personal data, as under Part V of the 1997 Act. It may be arguable that the requirements in the context of the 1975 Order are somewhat less stringent, as the particularly sensitive element of the use by the state of personal data is absent."
His conclusion on the question of "necessity" as it affected the 1975 Order was this (at -):
"142. I cannot however see any rational connection between minor dishonesty as a child and the question whether, as an adult, the person might pose a threat to the safety of children with whom he came into contact. There is therefore no rational connection between the interference with article 8 rights which results from the requirement that a person disclose warnings received for minor dishonesty as a child, and the aim of ensuring the suitability of such a person, as an adult, for positions involving contact with children, let alone his suitability, for the remainder of his life, for the entire range of activities covered by the 1975 Order.
143. It can only be concluded that the interference in issue in this case was not necessary in a democratic society to attain the aim of protecting the safety of children."
"48. ... (vii) Any differentiation within the system between categories of convicted persons calls for administrative action and has the potential for administrative complexity. Lord Steyn described how there was the potential for interminable and invidious disputes where differentiation is operated. While he was making that point in the context of differentiation between convicted and unconvicted persons (and thus was in error according to the Strasbourg court) the point retains its force in the context of differentiation between convicted persons. Carswell LCJ pointed out in In Re McBride  NI 269, 274 that the legislature wished to have as wide a cover for the database as possible in order to give the police the best chance of detecting criminal offenders. Marper requires protections for unconvicted persons and the current legislation and policy have limited the retention of data to those convicted of recordable offences. To allow further exceptions would in the view of the authorities undermine the effectiveness of the process which is designed to build up a database of those who have been involved in criminality to assist in the war against crime. Such a conclusion by the state authorities is legitimate and rational. (viii) The current policy in fact does distinguish between (a) unconvicted persons and those convicted of offences which are not recordable and (b) those convicted of offences which are recordable. This represents a policy and legislative intent which is not blanket or indiscriminate as such but one which distinguishes between cases."
"In the Gaughran case the interference (retention of DNA) was found to be disproportionate because
The retention was indiscriminate in terms of the nature and gravity of the offence and the age of the suspected offender.
The duration of retention was indeterminate.
That there were limited possibilities for an acquitted individual to have data removed or destroyed and that there was no provision for independent review of the justification for the retention."
We were informed by Counsel before us (who are both coincidentally members of the Northern Irish Bar) that, unlike in England and Wales, judgments are not routinely circulated in advance of formal delivery in court and so there would have been no opportunity for correction by counsel of what indeed seems to have been an error.
"While it is the case that the state is entitled to implement bright line rules, those rules cannot be at the expense of the core of the fundamental rights which the convention seeks to protect. In relation to the level of disclosure of criminal record information in this context it seems that any bright line that must be drawn as close to the point at which criminal record information ceases to be relevant as is possible. The disclosure of irrelevant criminal information – whether irrelevant because of the age or nature of the crime goes further than is necessary to achieve the objective of protecting vulnerable people and thus breaches article 8. This scheme is unlawful because in the case of any person with more than one minor conviction the scheme mandates in the first instance all minor convictions, but also mandates that those minor convictions be available for disclosure forever, where a person with a single minor conviction will have that expunged from the records to be disclosed after 11 years. This gives rise to the following irrational situations:
(i) a person is stopped for driving with a minor without a seatbelt and is convicted. This conviction (assuming there are no further convictions) will not be required to be disclosed after 11 years have passed. Another person convicted for driving with 2 minors receives two convictions. These convictions will always be disclosed and there is no mechanism by which they can be prevented from appearing in an EDC; ..."
"36. But even if there is no sufficient rational connection between the aim and the rule, is the Secretary of State nevertheless justified in adopting a 'bright line' rule which enables those administering the scheme quickly and easily to identify those who qualify? The Strasbourg jurisprudence is not altogether clear on this question. On the one hand, it tends to disapprove of a 'blanket' exclusionary rule, such as that on prisoners' voting (Hirst v United Kingdom (No2) (2005) 42 EHRR 849), or a 'blanket' inclusionary rule, such as that governing the retention of DNA profiles: S v United Kingdom  48 EHHR 1169. On the other hand, it recognises that sometimes lines have to be drawn, even though there may be hard cases which sit just on the wrong side of it; see, for example, Animal Defenders International v United Kingdom (2013) 57 EHRR 607. The need for bright line rules in administering social security schemes has been recognised domestically, for example in R (RJM) v Secretary of State for Work and Pensions  1 AC 311. Nevertheless, it was the absence of any possibility of taking the particular circumstances of the case into account which led to the finding of a violation in Ponomaryov, para 62.
37. The issue is therefore two-fold. First, even if a bright line rule is justified in the particular context, the particular bright line rule chosen has itself to be rationally connected to the aim and a proportionate way of achieving it: see, for example, R (T) v Chief Constable of Greater Manchester Police (Liberty intervening)  AC 49. Secondly, however, it is one thing to have an inclusionary bright line rule which defines all those who definitely should be included. This has all the advantages of simplicity, clarity and ease of administration which are claimed for such rules. It is quite another thing to have an exclusionary bright line rule, which allows for no discretion to consider unusual cases falling the wrong side of the line but equally deserving. Hitherto the evidence and discussion in this case has tended to focus on whether there should be a bright-line rule or a wholly individualised system. There are obvious intermediate options, such as a more properly tailored bright line rule, with or without the possibility of making exceptions for particularly strong cases which fall outside it. There are plenty of precedents for such an approach including in immigration control."
"93. In relation to this type of argument, it was noted in Bank Mellat, para 75 (Lord Reed JSC) that courts must accord a measure of discretion to the primary decision-maker, and therefore exercise corresponding self-restraint, if there is to be any prospect of legislative and executive choices being respected. As the present case illustrates, it will almost always be possible for the courts to conclude that a more precisely tailored bright line rule might have been devised than the one selected by the body to which the choice has been democratically entrusted and which, unlike the courts, is politically accountable for that choice. But in the words of Dickson CJ in R v Edwards Books and Art Ltd  2 SCR 713, pp781-782, the courts are not called on to substitute judicial opinions for legislative or executive ones as to the place at which to draw a precise line. In a case concerned with the allocation of public expenditure in order to fulfil objectives of social and economic policy, the degree of respect paid by the court to the judgment of the legislature or executive, and the consequent width of the discretion afforded to the primary decision-maker, must be substantial. That is reflected in the test of whether the policy choice is manifestly without reasonable foundation.
94. The need to accord a measure of discretion to the legislator when considering the proportionality of general rules has been recognised by the European Court of Human Rights..."
"64. In the light of these points I accept that the introduction of an element of discretion as to what should be disclosed in relation to a particular applicant was neither practical nor sufficiently certain; not least because the way in which the discretion might have to be exercised could change even for the same person when they changed jobs. In my judgment this is the answer to what was perhaps Mr Offer's most attractive way of putting the Claimant's case: that a system which required the disclosure of a conviction for an assault which took place when he was a juvenile 30 years ago, was (in the broadest sense) unfair and contrary to beneficial aim of rehabilitation, particularly of juvenile offenders.
65. The difficulty with this submission is that almost any system which could be devised may lead to harsh results at the margins. This was recognised in R(T) in the Court of Appeal in the Court's reference to 'bright-lines' rules or sub-rules, and its recognition that 'a proportionate scheme would not require the individual consideration of each case' and 'an examination of the facts of each case'".
The essence of the decision can, I think, be taken from paragraphs  and  of the judgment as follows:
"71. Once it is accepted (as it must be) that Parliament was entitled to specify certain offences in respect of which disclosure must always be made, the Claimant's complaint simply becomes where Parliament drew the line between those offences and other offences. Simply to say that the line could have been drawn elsewhere does not demonstrate that the same policy objective could have been achieved by a less intrusive means."
"78. The assessment of the advantages and disadvantages of various legislative alternatives is primarily a matter for Parliament and the existence of alternative solutions 'does not in itself render the contested legislation unjustified'; this conclusion is appropriate only where 'it is apparent that the legislature has attached insufficient importance to a person's Convention right' (Wilson v First County Trust Ltd (No2)  1 AC 816 at §70, accepted in R(T) in the Supreme Court at ."
(E) The Present Claims and my Conclusions
"This issue may appear to overlap with the question whether the interference is "necessary in a democratic society": a question which requires an assessment of the proportionality of the interference. These two issues are indeed interlinked…"
Mrs Justice Carr :
"40. It is true that "bright-line" rules are legitimate in some circumstances and that they do not become subject to challenge simply because of cases at the margins which are not fully catered for by the rule….For example in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport  1AC 1312, para 33, Lord Bingham of Cornhill said :
"legislation cannot be framed so as to address particular cases. It must lay down general rules... A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.""