England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/10/2017

Mr Justice Green:

A. Introduction: The issue and conclusion

1. This is the judgment of the Court.
2. The claim concerns the legality of the disclosure and use of information held on and retrievable from police records. The case concerns a reprimand given to the Claimant, when she was aged 13, which subsequently precluded her from being employed by the South Wales Police ("the Police") in a staff position and, she says, has had the additional effect of blocking her from being offered employment in any service related to policing in the future including as a police constable.
3. The Claimant argues that both the disclosure and the use of this reprimand amounts to an intrusion into her private life which is capable of amounting to a violation of Article 8(1) ECHR, and, that the interference was not justified under Article 8(2). Article 8 is very well known. It provides:

Article 8 – Right to respect for private and family life

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.

4. There is no dispute between the parties that the disclosure and use of the reprimand in this case is, in principle, capable of engaging Article 8. The real dispute concentrates upon whether the disclosure and use (or "interference") is justified under Article 8(2).
5. The two components of Article 8(2) which are in issue are: (1) whether the interference was "in accordance with the law"; and/or (2), whether the interference was "necessary in a democratic society".
6. The issues arising are affected by a series of recent judgments including of the Supreme Court. The first is R (T) v Chief Constable of Greater Manchester Police [2015] UKSC 35 ("T") in which the Supreme Court laid down the criteria that should be applied to determine whether schemes governing the retention, disclosure and use of records of this nature complied with Article 8. T was then applied in R (P, G, W and Krol) v. Secretary of State for Justice & Ors [2017] EWCA Civ 321 ("P & Ors"), and, Re Gallagher [2016] NICA 42 ("Re Gallagher"). These judgments purport to apply the jurisprudence of the European Court of Human Rights, in particular in its judgment in MM v United Kingdom (Application No 24029/07) (29^th April 2013) ("MM").
7. The Supreme Court has granted permission to appeal the judgments in P & Ors and Gallagher. The appeals are due to be heard in 2018 and judgment is therefore not expected before late 2018 at the earliest. Several important points are to be raised, including the scope of the test in T, whether there is any margin of appreciation accorded to Parliament in the application of the first part of the Article 8(2) test ("in accordance with the law"), and as to the applicability of "bright line" cut-off rules.
8. An application was made in this case for the claim to be stayed pending the judgment of the Supreme Court in T. The application was rejected by Lord Justice Burnett (as he then was). At the outset of the hearing we explored the level of overlap between the appeal before the Supreme Court and the present case. It was accepted by all that at the least the rulings of the Supreme Court would be relevant. Mr Straw, on behalf of the Claimant, urged us to proceed to determine the claim nonetheless. He emphasised that the Claimant had suffered in a significant manner as a result of the rejection of her application to be employed by the Police. A delay pending the judgment of the Supreme Court could prolong her uncertainty and sense of grievance for up to 2 years. She was entitled to justice now. We accept that to delay judgment in this case would not be conducive to justice or fairness. As we explain below there is a relatively narrow way in which this case can be resolved, in favour of the Claimant, by focusing upon the use made of information disclosed. However, we recognise that resolving the issue in her favour in this manner does not provide to her all of the comfort that she seeks. In order to afford her full and effective protection we need to analyse the legality of the legislative scheme in issue in order to determine whether the disclosure of the information which preceded its use was also lawful. We have concluded that we should therefore address both issues relating to the use of previous criminal records and the wider legislative scheme governing disclosure, and their compatibility with Article 8.
9. Before considering the merits, we need to address two additional procedural matter which arose. In her initial claim for judicial review the Claimant did not seek to challenge the decision of South Wales Police to reject her application for employment in a supporting staff role. Instead she included challenges to the earlier reprimand (given in 2007) and also to the decision to refuse to delete the record of her reprimand from the Police National Computer. Mr Justice Collins refused permission to proceed with these two particular claims, whilst allowing other issues to go forward to a full hearing. Thereafter South Wales Police decided to take no part in the proceedings, albeit that the remaining issues affected them more broadly. No doubt they considered that the combined forces of the Defendants (the Secretaries of State and the National Police Chief's Council) could more than adequately cover their interests. Upon the communication of the draft Judgement to the parties for editorial comment the National Police Chief's Council responded and made two points. First, that it was unfair that the Court should reach a conclusion about the decision of South Wales Police to refuse employment when it was not a live issue in the litigation. Second, that the policy that we have analysed in this judgment as applicable and relevant as governing applications to the police for employment, might not have been the policy that was actually in force at the time of the decision to reject the Claimant's application. It is now said that that the Court should not have expressed any view as to the legality of this particular policy because it was not really in issue in the litigation. We deal with these two matters as follows:

i) In relation to our conclusion on the lawfulness of the decision of South Wales Police to reject the Claimant's application, as we set out later on in this judgment, because of the way in which the argument was framed on the part of the Secretaries of State (in particular their argument that the analysis of disclosure had to take into account the existence of controls on use) we considered that it was not only desirable but necessary to examine how the information in issue (as to the reprimand) was actually used. The Secretaries of State had raised a serious argument and we could not do it justice, or respond to the counter arguments of the Claimant, if we ignored what had actually happened in this case in relation to use. This meant that we had to consider precisely how South Wales Police had addressed the Claimant's application. The National Police Chief's Council was present and represented in Court and made submissions about this, acknowledging that the decision was (in its view) unlawful. It was always open to South Wales Police to attend in order to protect its position if it thought that was sensible. It chose not to. Standing back, and taking into account the overriding objective, given the forensic fire power in court to protect the wider interests of the State and of the Police generally we can detect not a hint of unfairness or prejudice to South Wales Police in the approach we have adopted. They are not exposed to costs and, for reasons we set out at the end of this judgment, we have decided not to make formal declarations about the policy being used by the police generally and/or as to the specific decisions made by South Wales Police in relation to the Claimant's applications for employment.

ii) With regard to the second issue (concerning the policy of the Police actually in use at the relevant time) we had provided to us during the hearing the most up to date version of that policy. This document was quite obviously relevant to the argument being advanced by the Secretaries of State that strict disclosure rules were acceptable in law since the proper focus of the law should be on use. This document went squarely to the manner in which such information was presently used by the Police. To test the Secretaries of States arguments we had to consider it. And as is evident from our judgment when we did we were deeply unimpressed. Brief comments were made about it by counsel for the National Police Chief's Council during the hearing, largely in response to questions from the Court. We were not invited to receive further submissions (during or after the hearing) about the document from Counsel. It is not suggested that, even if an earlier version was technically applicable and in force at the relevant time, it would have made any difference to the analysis and, looking forward in time, it is the current version that we have analysed which really matters.

We therefore note the observations that have been made. We have given them close attention. We have considered them from the perspective of fairness and the overriding objective. We have taken them into account when considering appropriate relief. They do not however otherwise affect our analysis or conclusions.

10. The issues arising on this appeal are complex and require the Court to differentiate between a number of scenarios which engage the relevant policy considerations to various degrees. It is possible to identify four principal categories of circumstance where criminal records are concerned:

(i) The retention of records.

(ii) The deletion or expunging of all or part of retained records.

(iii) The disclosure of records by the record keeper to third parties, such as employers whether in the public or private sectors.

(iv) The use of such records by an employer.

11. Permutations can arise even within these categories. For instance, in relation to disclosure this can occur either because a public authority (holding records) discloses to (say) an employer, or, because the individual concerned discloses his or her own previous record. In relation to disclosure by an individual there are further permutations: a person might be required by law to self-disclose his or her criminal record, for instance as part of a job application. But even where there is no statutory compulsion the common law imposes a duty of honesty such that the proffering of an untruthful answer (e.g. "I have no previous caution") in response to a more informal request for information could amount to a misrepresentation which could vitiate a contract of employment later entered into and/or amount to a criminal deceit.
12. In this case the Claimant self-disclosed her prior reprimand in response to a request for information which was part of a formal job application process. But it is also apparent that the Police obtained verification of her record because the decision letter in issue refers to her own disclosure being "…confirmed by the Police National Computer".
13. This case thus concerns the use made of the self-disclosure i.e. the decision to refuse to offer employment upon the basis of the disclosure. If this is the focal point of attention then the decision and the policy used to determine that decision are at the heart of the analysis and as we explain below on this basis the Claimant succeeds.
14. However, as already observed, the true concern of the Claimant is that because she is compelled in law to self-disclose she will always be at risk, in the real world, of discriminatory and unlawful treatment. The vice, in her view, is therefore the obligation to disclose in the first place and she does not consider that restrictions on use following disclosure provide real or effective protection. It is pointed out on her behalf that on the facts of the present case there is no cause for optimism that regulation of use will ever be effective. Evidence before the Court shows that the Police have delayed substantially in bringing their practice and guidance into line with the law, and that the standard of vetting across the jurisdiction is frequently inconsistent and sub-optimal. Indeed, the present case illustrates graphically how any assumption that employers will apply Article 8 type criteria in a fair, consistent and effective manner may be seriously misplaced.
15. On the basis of the evidence before us we see force in the Claimant's submission. The criminal record in issue reflects the very lowest level of seriousness. It is a reprimand for group theft of a low value consumer item. The reprimand is now historical relating to conduct committed many years ago. The Claimant has, otherwise, an unblemished record and is of good character. She has a degree in criminology. Prima face, she is a serious candidate for employment within the Police. No one has sought to suggest, by reference to the particular facts of this case, that a serious link can be drawn between the Claimant herself, and any risk caused by employing her to public confidence or to the integrity of the work that she might be asked to undertake as an employee or as an officer. For our own part we can see no sensible or rational basis upon which the reprimand could be relevant to the Claimant's preferred employment. Yet the Police still used that reprimand peremptorily to refuse the Claimant's job application.
16. We also see force in the argument that it would be relatively straightforward to create a statutory carve out from the duty to disclose for historical reprimands arising out of certain categories of low level offending. We cannot see why any scheme governing disclosure should not exclude from the duty to disclose a reprimand of the type and nature arising in this case.
17. Nor can we see any way of distinguishing the present case from the logic of the judgments in T, P & Ors, and, Gallagher. Such differences as have been drawn to our attention are distinctions without differences. We are unconvinced that even if the arguments that the Secretary of State wishes to advance in the Supreme Court during the appeals are upheld that it would make any real difference to the outcome of this case. For example, we consider that in relation to historical reprimands for this sort of low level offending the result would be same even if there was a margin of appreciation to be accorded to Parliament and even upon the basis that it is lawful to introduce bright line cut-off rules.
18. We have concluded that: (1) the decision of the Police to refuse employment was unlawful as in breach of Article 8; (2) the Policy relied upon by the Police to determine the Claimant's application for employment is in violation of Article 8; and (3) the legislative regime governing disclosure is in violation of Article 8 in so far as it concerns reprimands of the nature in issue in this case. Our more detailed conclusions and our conclusion on appropriate declaratory relief, are set out in paragraphs [94] and [95] below.

B. The Facts

19. The facts are not materially in dispute. They can be summarised as follows.
20. The Claimant was born on 22 August 1993.
21. On 19^th May 2007, when the Claimant was 13 years of age, she assisted 3 other girls to steal a sarong from Primark. The sarong was worth about £20 and the girls were apprehended and arrested. The Claimant admitted complicity. A reprimand was issued to her. The police CRIS record states in relation to retention: "A record of this reprimand will be kept by the police for a minimum of 5 years". It is common ground that in law a reprimand is spent as soon as it is issued.
22. The Claimant has had no other contact with the criminal justice system. The reprimand is the only blemish to her otherwise good character.
23. The Claimant completed school and in September 2012 began a degree in criminology at Cardiff University. She graduated in July 2015. She decided to pursue a career in the police service.
24. On 3^rd April 2015, the Claimant applied to South Wales Police for a job as a service support officer. She understood that applying for the post of service support officer would enable her to gain the experience necessary to apply successfully to become a police constable at a later point. In the course of the application process she was asked to disclose any prior misconduct and, acting with candour, she revealed the existence of the reprimand.
25. By a letter dated 24^th April 2015 ("the Decision letter"), her application was rejected in accordance with the extant policy on "Convictions and Cautions Criteria – Recruitment Vetting and NPPV Levels 2 and 3" ("the Policy").^[1] The rejection was justified solely upon the basis of the reprimand. It was explained that the Police had confirmed the existence of the reprimand by accessing the Police National Computer.
26. The Decision letter stated:

"NPIA Circular 02/2011 and the ACPO Vetting Policy, state that if a person has a conviction or caution for … theft … they should be rejected unless there are exceptionally compelling circumstances.

The Crown Prosecution Disclosure Manual requires disclosure of "any relevant information", during criminal court proceedings. Police Officers or Police staff required to give evidence in any prosecution, have to disclose criminal convictions and cautions, whether spent or otherwise. Your reprimand for theft would be liable to be "disclosed" within any prosecution and could undermine the integrity of the evidence.

Your application was therefore rejected at an early stage in our recruitment process, purely on the strength of this reprimand, so you did not go through full vetting. We cannot therefore confirm or deny whether there are any other issue which may preclude you from recruitment in future.

I should point out that whilst the letter from our Employee Resourcing department indicated (as you point out in your email) that you are eligible to reapply for any posts in the future with South Wales Police, this is a generic statement.

Whilst we cannot be sure how such recruitment guidelines will change in future, under current guidelines it is unlikely that you would be successful in any recruitment process for the UK Police Service due to this reprimand".

(Italics in the original).

27. On 15^th September 2015, the Claimant applied to the Police National Record Deletion Unit for deletion of all records relating to her reprimand and arrest. The unit coordinates applications but the final decision on the application rests with the Chief Constable.
28. In October 2015, the Claimant was referred to a consultant psychiatrist, Dr Roger Thomas. He wrote a letter on 10^th November 2015 which recorded that he had diagnosed the Claimant with a major depressive illness and she had been started on antidepressant medication. He observed:

"There is certainly no doubt that this "reprimand" and the effect it has had on her ability to find jobs has clearly been a major factor in continuing her depression…"

"In my view it is essential for her mental health that this "reprimand" is removed such that she can continue with a productive working life."

29. The medical opinion was forwarded to the Record Deletion Unit. The Claimant's solicitors asked that it be considered alongside her application for deletion.
30. The application for deletion of the Claimants reprimand was refused. This is recorded in a letter dated 18^th February 2016. The Record Deletion Unit stated that the Chief Constable of South Wales Police had decided not to delete records of the reprimand. The letter explained that the Claimant's:

"… record will be retained on the Police National Computer until you are deemed to have reached 100 years of age. This is in accordance with current policy."

31. The medical evidence adduced on behalf of the Claimant indicates that her depression continues and is debilitating and has led her to move from full-time to part-time work.

C. The Legislative framework

32. The statutory and common law background relating to the disclosure of convictions and cautions for employment purposes is explained in T (ibid) at paragraphs [67] - [87] and P & Ors (ibid) at paragraphs [11] - [13].
33. The legislation creates a scheme that is intended to balance two critical interests. First, to enable an offender to be rehabilitated so that he or she can play a constructive role in society; and, second, to protect the public from crime.

Rehabilitation of Offenders Act 1974

34. The Rehabilitation of Offenders Act 1974 ("ROA 1974") stipulates that convictions and cautions (which under section 135(5) Legal Aid Sentencing and Punishment of Offenders Act 2012 include reprimands and warnings) for criminal offences do not have to be disclosed insofar as they are "spent". A conviction becomes spent after specified periods depending essentially upon the age of the offender at the time of conviction and the type of sentence imposed. A caution becomes spent as soon as it is administered: paragraph 1 of Schedule 2 ROA 1974.
35. Protection is given to the recipient of a caution by paragraph 3(3) and (5) of Schedule 2 ROA 1974:

"(3) Where a question seeking information with respect to a person's previous cautions… is put to him or to any other person otherwise than in proceedings before a judicial authority—

(a) the question shall be treated as not relating to spent cautions or to any ancillary circumstances, and the answer may be framed accordingly; and

(b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent caution or any ancillary circumstances in his answer to the question...

(5) A caution which has become spent or any ancillary circumstances, or any failure to disclose such a caution or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment."

The 1975 Order

36. Analogous protection in relation to convictions is provided by sections 4(2) and (3)(b) ROA 1974. The Secretary of State can however, by order, exclude this protection against self-disclosure under section 4(4) and paragraph 4 Schedule 2 ROA 1974. Pursuant to that power, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 ("the 1975 Order") was adopted. The 1975 Order disapplies the protection in a range of circumstances.
37. The circumstances include those specified in Articles 3ZA and 4ZA, which provide that all spent cautions and convictions fall to be disclosed for certain employments, if so requested by the relevant employer:

"3ZA. Neither section 4(2) of, nor paragraph 3(3) of Schedule 2 to, the Act applies in relation to—

(a) any question asked by or on behalf of any person, in the course of the duties of his office or employment, in order to assess the suitability—

(i) of the person to whom the question relates for an office or employment specified in paragraph 1, 6, 16, 17, 18, 18A , 31, 32 , 35 or 36 of Part II of that Schedule^[2] or for any other work specified in paragraph 35 or 36 of that Part of that Schedule; or

(ii) of the person to whom the question relates or of any other person to pursue an occupation specified in paragraph 1 or 8 of Part III of that Schedule or to pursue it subject to a particular condition or restriction…

where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed…

4ZA. Neither paragraph (b) of section 4(3) of, nor paragraph 3(5) of Schedule 2 to, the Act applies in relation to—

(a) any office, employment or occupation specified in paragraph 1, 6 , 16, 17, 18 , 18A , 31, 32 , 35 or 36 of Part II of that Schedule or paragraph 1 or 8 of Part III of that Schedule or any other work specified in paragraph 35 or 36 of Part II of that Schedule;…"

38. The positions specified in Part II of Schedule 1 of the 1975 Order (of Article 3ZA (a)(i) above) are: (a) judicial appointments (paragraph [1]); (b) constables and persons appointed as police cadets to undergo training with a view to becoming constables and naval, military and air force police (paragraph [6]); (c) any office or employment in the Serious Fraud Office or in the National Crime Agency (paragraphs [16] and [17]); (d) the Commissioners for Her Majesty's Revenue and Customs and any office or employment in their service (paragraph [18]); (e) The Official Solicitor and his deputy (paragraph [31]); (f) certain appointments to the office of Public Trustee (paragraph [32]); (g) any office, employment or other work which is concerned with the establishment of, operation of, or access to a database under section 12 of the Children Act 2004 (paragraphs [35] and [36]) .
39. The positions specified in paragraph 1 and 8 of Part III of Schedule 1 (of Article 3ZA(a)(ii) above) are a firearms dealer and a person who is required to obtain an explosives certificate.
40. Prior to 29 May 2013 Articles 3 and 4 of the 1975 Order excluded the ROA 1974 protections from self-disclosure in respect of a longer list of occupations and activities. The list included all of those now in Article 3ZA, but also included certain other sensitive employments and activities such as work with children or vulnerable adults, and of relevance to the present case, police support roles.

The 2013 amendments to the 1975 Order

41. On 29 May 2013 Articles 3 and 4 were amended (by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013/1198) ("the Amendment Order"). Under this measure 'protected cautions' and 'protected convictions' no longer had to be disclosed in respect of those other sensitive employments and activities. A 'protected caution' is defined in Article 2A(1) of the 1975 Order and covers less serious offences, where specified periods have passed since the caution was imposed. It includes the Claimant's reprimand for theft. A 'protected conviction' is defined similarly in Article 2A(2), with added criteria that the subject must not have received a sentence of detention or custody, and has received no other conviction. The 29^th May 2013 changes also reduced the length of the list of sensitive positions for which blanket disclosure of spent convictions and cautions is required.
42. It follows from the above that, as the law stood after May 2013 when the Claimant applied to the Police, if the Claimant applied to be a constable or a cadet she could be asked to disclose her reprimand and she had no protection if she failed to do so. However, there was no such obligation in relation to her application to be a support worker.

Police Act 1997: The "CRC" and "ECRC" System

43. Part V of the Police Act 1997 ("PA 1997") is also relevant. It created a statutory scheme for the disclosure of criminal records and, in limited circumstances, other information held by the police relating to individuals, where required in order to assess the suitability of a person for employment in particular types of position of trust or sensitivity (e.g. involving contact with children, or suitability for the grant of particular types of licence or permit).
44. The purpose of Part V was described in R (L) v. Commissioner of Police for the Metropolis [2010] 1 AC 410 ("L") at paragraphs [4] - [5]. Previously, disclosure was governed by a series of Home Office Circulars, but the Act was designed to formalise the process and circumstances in which disclosure for employment and other purposes occurred. Under Part V the Disclosure and Barring Service is required to issue a criminal record certificate ("CRC")) or an enhanced criminal record certificate ("ECRC") upon an application by the person to whom the information relates, if a 'Registered person' certifies it is required for the purposes of an 'exempted question'. In outline 'Registered persons' are those entered on a register maintained by the Secretary of State containing the names of those who are likely to ask an exempted question. By sections 120A and 120AA the Secretary of State may refuse or remove registration in certain circumstances, including where the person is not a suitable person to have access to the information. An 'exempted question' is a question about suitability for engagement in specified sensitive employment or activities. It is defined in section 113A(6) as a question in relation to which the protections in section 4(2) ROA 1974 have been excluded by the 1975 Order. Thus, the State can only disclose information in respect of the limited list of sensitive positions defined in that Order.
45. The CRC must give "the prescribed details of every relevant matter relating to the applicant which is recorded in central records" held by the police: section 113A(3) PA 1997. A 'relevant matter' is defined by section 113A(6). Before 29^th May 2013 it meant all convictions and nearly all cautions. However, following that date (and pursuant to Article 3 of the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013/1200) a relevant matter is defined as any current conviction or caution, a conviction in respect of which a custodial sentence was imposed, a single spent conviction or caution for one of the more of the serious offences in section 113A(6D) ("the serious offence rule"), and any conviction if the person has more than one conviction ("the multiple conviction rule"). The more serious offences in section 113A(6D) do not include theft.
46. The effect of this is that the Claimant's reprimand would not be disclosed within a CRC if she were to apply to be a constable (or indeed for any other position).
47. Section 113B PA 1997 provides for the disclosure of additional information within an ECRC where required for the purpose of an exempted question asked for a prescribed purpose. Such purposes include considering the suitability of a person to engage in a regulated activity relating to children or vulnerable adults.
48. In addition to the information that would be disclosed in a CRC, the ECRC includes information held on local police records which the chief officer of the relevant police force reasonably believes to be relevant, and which in his opinion ought to be included in the certificate. This information is sometimes called "soft intelligence". In L the Supreme Court concluded that "soft intelligence" could only be included in the ECRC if compatible with Article 8. In the event of doubt the subject should be given an opportunity to make representations about it prior to disclosure. Pursuant to section 117A PA 1997 a right of challenge to the independent monitor exists. In paragraph [41] of its Detailed Grounds the NPCC accepted that it was unlikely that the Claimant's reprimand would be disclosed within an ECRC.
49. Sections 123 and 124 PA 1997 create offences including knowingly making a false statement for the purpose of obtaining a certificate, and external disclosure by the authority who receives the certificate, of information within it.

National Police Chief's Council ("NPCC") policy on retention and disclosure

50. The National Police Chief's Council (NPCC) Deletion of Records from National Police Systems ("the Deletion Guidance") produced in 2015, contains non-statutory guidelines addressing when the police will delete records held on the Police National Computer. A summary, so far as relevant, is as follows. The Deletion Guidance states that the Police National Computer "will hold all conviction data [which includes reprimands] until the record subject is deemed to have reached 100 years of age". Chief Officers can exercise a discretion, in exceptional circumstances, to delete records. Annex A sets out circumstances in which deletion of records should be "considered". The circumstances cover where the reprimand or caution was inaccurate or wrongly imposed, or "where there is a wider public interest" (emphasis added). The "wider public interest" threshold is undefined. The addition of "wider" indicates that an applicant must demonstrate more than that the deletion is in the public interest. The Claimant refers to the interpretation given to the phrase "a wider public interest" in section 5(4) Legal Aid, Sentencing and Punishment of Offenders Act 2012 (which is concerned with the provision of legal aid for advocacy). It is there defined as: "… a determination that, in the particular circumstances the case, the provision of advocacy … is likely to produce significant benefits for a class of person, other than the individual and the members of the individual's family".
51. The Deletion Guidance is similar to the earlier Association of Chief Police Officers (ACPO) Retention Guidelines for Nominal Records on the Police National Computer. This formed part of the ACPO Guidance on the Management of Police Information ("the MOPI Guidance") 10^th of March 2006. The MOPI Guidance provided that a reprimand or caution would remain on the Police National Computer until the person reached 100 years of age. Chief Officers had a discretion in exceptional circumstances to authorise the deletion of any conviction. After specified periods, and depending on factors such as the age of the subject when the offence was committed, the record would "step down" i.e. it would thereafter be accessible to the police, and only for policing purposes.
52. The policy applicable before the 2006 MOPI Guidance was ACPO's General Rules for Criminal Record Weeding on Police Systems (Weeding Rules Version 5 - November 2000) (the "Weeding Rules"). Those provided that a reprimand of a child would be retained on police records until the child reached 18 years old, and then would be deleted 5 years after the reprimand was recorded, if no further reprimand or final warning had been imposed. The Weeding Rules also provided for a review of whether certain conviction data should continue to be retained.
53. The non-statutory guidance in the Association of Chief Police Officers' National Policy for the Police Community ("the ACPO vetting policy") provides that "recruitment vetting" should take place for all police officers, police staff and others before an application is accepted. Checks should be conducted of various police databases including the Police National Computer, for all conviction data, which includes spent convictions, cautions and reprimands irrespective of age. The Guidance states:

"Where an applicant has failed to disclose a conviction, caution or other relevant information as outlined above, his or her application should be rejected at this stage on the grounds of honesty and integrity"

D. Does Article 8 apply?

54. We turn now to consider the legal issues arising. The first question is whether this is the sort of case to which Article 8 can apply in principle. As to this Article 8 is capable of applying to issues concerning data retention, disclosure and use. Neither the Secretaries of State nor the NPCC dispute that proposition. A long line of clear case law makes the position plain.
55. In R (Catt) v ACPO [2015] AC 1065 ("Catt") the Supreme Court held that it was "clear" that the systematic collection and storage of public information about an individual by the State in retrievable form constituted "… an interference with private life" (ibid paragraphs [6], [47], [58], and [60]). In Sidabras v Lithuania (2004) 42 EHRR 104 "Sidabras" the European Court of Human Rights addressed a law, passed in the wake of Lithuania's declaration of independence, that former KGB officers could not, for ten years, pursue certain types of employment in the private sector. The Court condemned the law under Article 8 in conjunction with Article 14:

"48. …Admittedly, the ban has not affected the possibility for the applicants to pursue certain types of professional activities. The ban has, however, affected the applicants' ability to develop relationships with the outside world to a very significant degree, and has created serious difficulties for them as regards the possibility to earn their living, with obvious repercussions on their enjoyment of their private life."

56. The judgment in Sidabras was considered and followed by the Supreme Court in L (ibid) at paragraphs [24] and [27] by Lord Hope and at paragraph [72] by Lord Neuberger. The Court held that disclosure of police information for the purposes of employment interfered with Article 8. It was also cited with approval by the Supreme Court in T at paragraph [16] by Lord Wilson.
57. In MM the European Court of Human Rights held, at paragraph [190], that the retention and disclosure of a caution amounted to an interference with the Article 8 right. It was observed that disclosure of a criminal record could have "potentially devastating consequences" in an employment context (ibid paragraph [200]). A similar observation was made by Lord Neuberger at paragraph [75] in L. In both cases importantly the courts have adopted a pragmatic approach focusing upon the practical, real world, effects of a prior record upon a person's employment prospects.
58. In T the Supreme Court held that cautions or warnings (the receipt of which took place in private) represented an aspect of the recipient's private life respect for which was guaranteed by Article 8 and that the disclosure by the state of the details of such a caution or warning constituted an interference with that right. It followed that to be lawful they had to meet the requirement of Article 8(2) and in particular: (1) they had to be in accordance with the law and (2) they had to be "necessary" in a democratic society.
59. Whilst the Secretaries of State accept the basic point that Article 8 governs the area they nonetheless contend that the nature of the interference in the present case is not an intrusive one and that accordingly the strictness within which the Article 8 test is applied is less intense. They rely upon the observation of Lord Reed in T at paragraph [140] that in the 1975 Order scheme "the particularly sensitive element of the use by the state of personal data is absent", such that the "degree of intrusiveness of the interference" was "somewhat less stringent" than the context determined in that appeal of disclosure by the police of information held on the Police National Computer. The full quote from Lord Reed in paragraph [140] is as follows:

"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 can in my view be addressed most conveniently by considering in the first place whether the interference resulting from the Order, in a case such as that of the respondent T, has a legitimate aim and is "necessary in a democratic society". As I shall explain, that question admits of a clear answer. The 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."

60. The Secretaries of State rely upon this because they argue that it follows from Lord Reed's observations that the strictness of the application of the Article 8 test, being context specific, will apply with considerably watered down force to a case concerning disclosure because disclosure causes less intrusion into private rights than does use. We return to this argument later.

E. The Application of Article 8(2): The Parties' Submissions

The issue

61. We turn now to the central disputed issue of substance which concerns the application of Article 8(2). We consider this in two stages: first in relation to the policy governing the use of criminal records as set out and reflected in the Decision letter of 24^th April 2015, rejecting the Claimant's application for employment; second in relation to the disclosure obligation in the 1975 Order.
62. In both cases there are two questions. The first is whether the interference with the Claimant's rights was not "in accordance with the law", as required by Article 8(2); and the second is whether the interference is necessary in a democratic society.

Claimant's submissions

63. We have explained above why the Claimant's argument is focused upon disclosure and only secondarily upon use (see paragraphs [12] - [14] above). For this reason, the Claimant's written analysis targeted the disclosure rules in the 1975 Order. The Claimant starts by advancing the following points about the state of the jurisprudence in relation to disclosure rules:

(i) In T the Supreme Court condemned, under Article 8, the scheme for the mandatory disclosure of spent convictions and cautions under part V of the 1997 Police Act, in respect of the sensitive employments in Article 3 of the 1975 Order. Lord Reed giving the majority judgment (only Lord Wilson dissented) held (at paragraph [158]) that the scheme was not 'in accordance with the law' because the legislation allowed for "indiscriminate disclosure by the state of personal data which it has collected and stored" and did not "contain adequate safeguards against arbitrary interferences with Article 8 rights" (ibid paragraph [113]). For the interference to be "in accordance with the law" safeguards were required which had the effect of enabling the proportionality of the interference to be adequately examined (ibid paragraph [114]).

(ii) Legislation would not be in accordance with the law where it failed to distinguish between five factors identified as follows: (1) the nature of the offence; (2) the disposal in the case (3) the time which had elapsed since the offence took place; (4) the relevance of the data to the employment sought; and (5), the absence of any mechanism for independent review of a decision to disclose: cf ibid paragraph [119].

(iii) Under ECHR case law whether a scheme was in accordance with the law was not an issue where national authorities enjoyed a margin of appreciation. It was for the court to decide whether the scheme contained safeguards which enabled the proportionality of the interference to be adequately examined, having regard to the factors set out by Lord Reed paragraph 119 (supra). This applied to all measures, including primary legislation.

(iv) In relation to the lawfulness of the self-disclosure scheme within the 1975 Order the Court in T held that the conclusion that Part V of the 1997 Police Act was not in accordance with the law: "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." (ibid paragraph [140]). But the Court did not analyse whether the 1975 Order was in accordance with the law given the conclusion that the Order failed to meet the requirement of necessity.

(v) In P & Ors the Court of Appeal considered the post-29^th May 2013 version of Part V of the Police Act 1997 including whether the new 'multiple conviction rule' and the 'serious offence rule' were lawful. The Court considered that although an independent review was not a requirement in all cases, the less the statutory scheme differentiated as between the factors set out in paragraph [119] of T the greater would be the legal need for a mechanism whereby the decision could be reviewed.

(vi) In relation to the argument that "bright line" rules were justified, the Court of Appeal held that it was the function of the Court to determine "the adequacy of the bright lines chosen by Parliament to determine whether they are sufficiently calibrated" (ibid paragraph [90]). Applying that approach the Court condemned the two rules being challenged as not 'in accordance with the law". So, for instance, in relation to the serious offence rule the Court held that it was not totally indiscriminate because it drew a distinction between offences that were in Schedule 15 to the Criminal Justice Act 2003 and offences that were not but, it was nonetheless not sufficiently "calibrated so as to ensure that the proportionality of the interference [was] adequately examined". The rule drew a bright line by reference to only one of the features identified in T, namely the seriousness or nature of the offence. The rule applied in a blanket manner to any individual convicted of a serious offence and the conviction would be disclosed automatically with no distinction drawn based upon 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.

(vii) In T the Supreme Court also emphasised the cumulative effect of a failure to draw distinctions or provide for a mechanism for independent review. In P & Ors the Court of Appeal considered that at base the Court was determining whether the rule operated "in an arbitrary manner."

(viii) In Gallagher the Northern Irish Court of Appeal considered legislation that was equivalent to the provisions in England and Wales in issue in the present case: Gallagher paragraphs [11] - [13] and see also P & Ors paragraph [27]. The Court concluded that, insofar as the scheme mandated disclosure by the State of one or more convictions indefinitely, it was not in accordance with the law. The Court applied the reasoning in T: cf paragraphs [67] - [70].

64. For reasons already explained the Claimant is understandably loath not to rest her case upon the Decision letter which focuses upon the use of disclosed data and not the a priori disclosure. On the facts of the present case the Claimant argues as follows in relation to disclosure

(i) The scheme under the 1975 Order requiring disclosure of the Claimant's reprimand for theft, imposed when she was 13, for the rest of her life if she applied to be a constable, was not 'in accordance with the law'. Such a rule was not totally indiscriminate, in that it applied only to the employments listed in Article 3ZA. But the present rule was insufficiently calibrated to ensure that the proportionality of the interference was adequately examined. If an individual sought to become a police constable, the rule applied in a blanket way and the claimant's reprimand would be disclosed automatically. The adverse effect on the Claimant was exacerbated by the absence of any form of independent review.

(ii) The scheme was not 'in accordance with the law' for reasons analogous to those which led to the schemes in T, P & Ors, and Gallagher being held to be unlawful. No proper distinctions are drawn in the 1975 Order upon the basis of: (1) the nature of the offence; (2) the disposal in the case; (3) the time elapsing since the offence took place; (4) the relevance of the data to the employment sought. And there is no mechanism for review of retention and potential disclosure for employment purposes.

(iii) The fact that the rule at issue applies only to a list of sensitive positions is not an answer to the criticisms advanced. The mandatory disclosure scheme condemned in T applied only to a limited list of sensitive employments, namely those specified in Article 3 of the 1975 Order prior to amendment on 29 May 2013. The flaws and vices found to exist on the pre-May 2013 scheme remain.

(iv) The scheme in P & Ors was better calibrated and less indiscriminate than the scheme in the 1975 Order in this case. It required CRC disclosure of all spent convictions and cautions only in respect of the shorter list of sensitive employments and activities within Article 3ZA of the 1975 Order as amended on 29 May 2013. That is the same list in respect of which self-disclosure is required. But the Part V scheme was better calibrated and it was further limited by the other criteria in section 113(6) of the 1997 Act, including the multiple conviction and serious offence rules. Yet, the Court of Appeal still held that the Part V scheme was not in accordance with the law.

(v) There is no rational connection between the Claimant's minor dishonesty aged 13 and, for the rest of her life, the essential features of the job of a police constable. Now aged nearly 24, she has completed a degree in criminology and has committed no further misconduct. On the logic of the 1975 Order even if aged 55, and being of continued good character, she applied to be a constable, the reprimand would have to be disclosed.

(vi) In T, the Claimant was required to disclose warnings for theft received aged 11 when he applied for a job that might involve contact with children. The Supreme Court concluded there was no rational connection between the original misconduct, and the assessment of their suitability for the employment applied for. Lord Reed held:

"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."

(vii) In P & Ors, P was cautioned for a single offence of shoplifting, convicted for another, and convicted of an offence under section 6(1) of the Bail Act 1976. Her disclosable convictions militated against her obtaining paid employment as a teaching assistant. The Court of Appeal concluded in substance that there was no rational connection between the offences and the employment (paragraph [79]). The present case is a fortiori.

(viii) The Secretaries of State argue that spent cautions may have to be disclosed by police officers in the evidential chain to the CPS and are "likely to disclosed to the defence". Under sections 3 and 7A Criminal Procedure and Investigations Act 1996 a prosecutor must disclose anything that might reasonably be considered capable of undermining the case for the prosecution, or of assisting the case for the accused. A witness's previous reprimand would only be admissible in court under the comparatively restrictive bad character criteria in section 100 Criminal Justice Act 2003. It is extremely unlikely that an officer's single reprimand for minor dishonesty, committed many years before when aged only 13 would ever be relevant. But even if, exceptionally, such a historical reprimand could interfere with a prosecution, measures could readily be taken to prevent any risk or taint or association. There are several employments involving the provision of witness statements for criminal proceedings, in respect of which Article 3ZA 1975 Order does not require mandatory disclosure of all spent cautions, such as crime scene examiners or detention officers. The evidence of such persons might nonetheless be given during a trial. Yet Article 3ZA 1975 Order does not exclude the 1974 Act protections, on a blanket basis, when a person applies for the role of police staff. The mere theoretical possibility of disclosure to the defence is not therefore a proper basis for the existence of any bright line rule.

(ix) The Secretaries of State also argue that public trust and confidence in the Police could be undermined by recruiting police officers lacking proven integrity. The Claimant rejects the suggestion that there is a rational connection between the historical reprimand in issue and the public's confidence. Were the Secretaries of State to be correct a minor misdemeanor committed as a child would undermine the integrity of a 55 year old person with an otherwise immaculate record. Public trust and confidence would not reasonably be undermined by recruitment of a constable with an irrelevant reprimand. To the contrary the public would consider such an argument unfair, absurd and contrary to the established policy of rehabilitation.

(x) The scheme at issue has an adverse effect on a large number of people. The police workforce in March 2015 was circa 207,000^[3]. All such employees would have had their criminal history checked. Over a quarter of the working age population has a previous conviction. It follows that the scheme will exclude a very large number of people from working with the police.

(xi) There is no difficulty in devising a filtering process which would render the self-disclosure scheme lawful: cf per Lord Wilson in T at paragraph 49; and the Court of Appeal in P & Ors (ibid) at paragraphs [61], [65] – [66] and [67]. Filters (for instance based upon age) can be applied when disclosure is requested at the point of a particular job application. Alternatively, a caution could be removed from a CRC, but is open to be disclosed on an ECRC, subject to challenge. And further, misconduct at the least egregious end of the spectrum (not involving a criminal conviction) can be expunged from whatever records were maintained. Many analogous systems operate filters such as these which demonstrates their practicability and utility.

(xii) Accordingly, the 1975 Order was not in accordance with the law in relation to cautions and reprimands of the type in issue.

(xiii) So far as the test of necessity in a democratic society is concerned the basic test is that set out in the judgment of Lord Wilson in T at paragraph [39], namely: (1) whether the objective behind the interference was sufficiently important to justify limiting the right of the claimant under Article 8; (2) whether the measures were rationally connected to the objective; (3) whether the interference went no further that was necessary to accomplish the objective; (4) whether, standing back, a fair balance was struck between the right of the Claimant and the interests of the community. Applying this test there was in relation to the Claimant no basis upon which it could be argued that the disclosure obligation under the 1975 Order was necessary in a democratic society in relation to her.

65. In oral argument Mr Straw, for the Claimant, pointed out in relation to use that the Defendants did not seek to defend the lawfulness of the Decision letter. During the hearing the Policy used by the Police was disclosed to the Court. Mr Straw argued that it was clear from its face that it was not Article 8 compliant. We address the Policy in greater detail at paragraphs [69]- [75] below.

Submissions of the Secretaries of State

66. The Secretaries of State adopt a relatively straightforward approach. They argue:

(i) The 1975 Order and the surrounding legislative framework that now operates demonstrate that Parliament has given detailed and careful scrutiny to the different rules which govern retention, deletions, disclosure and use. Parliament has, since 2013 when the amendments were introduced (see paragraphs [40ff] above), sought to differentiate, deliberately, between those applying for support posts associated with the Police and jobs as a constable or cadet.

(ii) The solution that Parliament introduced was to create a bright line rule for those applying to become constables or Police cadets. Any possible injustice caused by this bright and sharp demarcation was softened by the fact that the use to which the disclosure may be put was subject to a discretion which took into account the circumstances of the case. As such it was important to view the scheme as a whole whereby the bright line rule on disclosure was considered in conjunction with the discretion attached to use, which was a proper safety valve which ensures fairness.

(iii) This approach is not inconsistent with the approach of the courts in T, P & Ors, and, Gallagher. These were concerned with different situations and they all recognised that context was important. The same applied to the judgment of the Court of Human Rights in MM. The approach in MM was based upon its particular context. That was clear from a comparison of the orthodox statement of principles in that judgment at paragraph [193] with the particular emphasis on the need for "minimum safeguards" at paragraph [195], because the "Court considers it essential, in the context of the recording and communication of criminal record data as in telephone tapping, secret surveillance and covert intelligence-gathering, to have clear, detailed rules governing the scope and application of measures; as well as minimum safeguards…thus providing sufficient guarantees against the risk of abuse and arbitrariness". The Court was applying enhanced standards because of the particular nature of the interference in issue. The substance of the 1975 Order was clearly not analogous to telephone tapping or covert intelligence gathering. Reliance by the Claimant upon Christian Institute v Lord Advocate [2016] UKSC 51; 2016 SLT 805 as authority for the wider application of the approach in T was erroneous. The factual context in Christian Institute was a statutory scheme which imposed wide-ranging information sharing (disclosure) powers and duties in relation to sensitive child safeguarding data. The analogy with T is clear; but an analogy with the 1975 Order is not.

(iv) The correct position under ECHR case law was as follows:

a. The expression "in accordance with the law" must be interpreted in the light of the general principles set out in Sunday Times v UK (1979-80) 2 EHRR 245 to apply to the comparable expression "prescribed by law" (Silver v UK (1983) 5 EHRR 347 at paragraph [85], and, Malone v UK (1985) 7 EHRR 14 at paragraph [66]).

b. The phrase indicates that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by Article 8(1) (Malone at paragraph [67]).

c. The law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to interfere with the individual's rights (Malone at paragraph [67]; Hasan and Chaush v Bulgaria (2002) 34 EHRR 55 at paragraph [84]; Rotaru v Romania (1999) 8 BHRC 449 at paragraph [55]; and, Libeerty and others v UK Application No. 58243/00, decision 1 July 2008, at paragraph [9].

d. A law which confers a discretion must indicate the scope of that discretion and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection.

e. Article 3ZA of the 1975 Order satisfies these requirements (as does Article 4ZA). It is clear as to the circumstances in which an individual may be protected from having to answer a question about his spent convictions.

(v) When considering the existence of the bright line rule, which does not differentiate low level cautions from any other type of criminal record of offence, it is critical to recognise that applicants for the office of constable may be required to disclose their full criminal record, in order to ensure that the integrity of and public confidence in the police service is maintained. Nothing in the 1975 Order requires any particular outcome in any particular application. The 1975 Order nonetheless recognises that the office of constable, exercising the coercive power of the State, requires the highest standards of integrity and appropriate vetting. There is a self-evident nexus or connection between all criminal records without exception and appropriateness to hold that office.

(vi) The proportionality of the approach taken in the 1975 Order is justified by the nature of the office of police officer. The need for an exception for the office of police constable is obvious and is a feature of every scheme involving "bright line" rules. It may well be that the imposition of a bright and rigid line creates hard cases at the margins; but this does not render the scheme itself unlawful: R (Tigere) v Secretary of State for the Home Department [2015] UKSC 57 ("Tigere").

(vii) The Claimant's objection is her belief that the existence of her reprimand will automatically disqualify her from obtaining the office of constable. But this is not the result of the 1975 Order, or anything done by the Secretaries of State, and is a complaint (if sustainable) directed at any Police force operating such a local policy, or a national body such as the NPCC if it had formulated a national policy to that effect. It follows that any objection arising must be directed at the exercise of the discretion (ie use) and not the legislative scheme itself.

(viii) In so far as any challenge is mounted towards the rules on retention of records there is ample evidence to support the rationality and legality of the rule. But this case is not the case in which to consider rules on retention. In so far as the Claimant has suffered harm this flows from the use of the disclosed information by the Police in question and is nothing to do with retention.

NPCC submissions

67. So far as the NPCC is concerned the thrust of its argument was focused upon establishing that retention rules are justified. For reasons that we explain we take the view that retention is not at the heart of this case and we do not feel it necessary or appropriate to consider retention rules in this judgment. Equally, the NPCC emphasises that any question as to the legality of the legislative framework and whether they strike the correct Article 8 balance is for the Secretary of State, not the NPCC. In the course of the hearing Mr Beer QC for the NPCC made submissions on the use of the Policy to the facts of this case. He candidly accepted that, in the view of the NPCC, the South Wales Police erred in applying the Policy to the Claimant, given that the law had changed and she should never have been asked for the information in the first place given that she was not at the time seeking employment as a police officer or cadet. He consequentially acknowledged that she had not been under any duty to proffer the information and that the Police having received it should have ignored it. In short, he accepted that the Decision letter was unlawful. With regard to the prospective effect of the Decision letter Mr Beer accepted that it had to be read in the light of Article 8. He argued that since the Claimant's actual application concerned employment otherwise than as constable or cadet it had no prospective relevance. It did not preclude the Claimant making a further application to the Police for employment as an officer or cadet, in which case her application would be treated on its merits. It was accepted however that the Policy would apply to an application made today by the Claimant to become a constable or a cadet. The Policy was in the process of being amended, so as to become statutory guidelines, but there had not been an opportunity for Parliamentary time to be found for their approval. The Court was referred to the fact that interim guidance had been issued in the form of a circular issued by the NPCC dated 9^th August 2016. This indicated that spent convictions and cautions were not relevant for police staff or non-police personnel roles. It did not address reprimands and cautions in relation to the position of officer or cadet.

F. Analysis/ Discussion

The two issues: Use and disclosure

68. In the light of the parties' submissions we turn now to our conclusions. We have divided our analysis into: (i) use of disclosed information; and (ii), the disclosure of the information. We consider that it is important to examine both limbs because the Secretaries of State argue that a bright line rule requiring disclosure of all prior records in relation to employment with the police as an officer is justified because (inter alia) any prejudice inherent in the application of the rule can be mitigated and softened by the way in which the information is then used. Mr Straw's contrary argument for the Claimant is that no trust can be reposed in a system that relies upon the regulation of use as a panacea to any hardship flowing from a disclosure rule, and he cites as stark proof positive of this the facts of the present case.

Use: The Policy

69. To put our analysis of use into context we need to delve into the facts in greater detail and in particular into the terms of the Policy applied by the Police which was disclosed during the hearing. The Claimant applied for a job as a "service support officer" i.e. not as an officer or cadet. The Decision letter (24th April 2015, see paragraph [26] above) rejected her application to become a service support officer upon the basis that under the Policy her caution was preclusive. She was rejected at a very early stage of the recruitment process, "purely on the strength of this reprimand". She did not even get to the stage of "vetting".
70. The refusal was based upon the Policy and the "exceptionally compelling circumstances test" which is set out therein. The Policy starts with a statement of general principle. It emphasizes the importance of the public maintaining confidence in the integrity of the police force: Officers may be vulnerable to pressure from criminals and others to disclose information. Under applicable disclosure rules the value of the evidence tendered in criminal proceedings by a person with a record may be compromised. The police should not recruit people with prior records "…which may call in to question the integrity of the applicant…". The Policy then proceeds to distinguish between 7 issues. The first issue covers applications which should be automatically rejected and covers prior offences such as murder, treason, rape etc. The second issue covers a very wide range of other prior criminality which stretches from extreme violence to low level theft. In such cases an application should be rejected unless there are "exceptionally compelling circumstances." The third issue concerns "General" criterion governing, in effect, how the exercise of discretion should be applied. The other issues set out in the policy do not need to be considered. For present purposes it is therefore the second and third issues that are relevant.
71. It is worth setting out how the Policy works in relation to cautions for an act of dishonesty, such as theft:

(i) The starting point is that there is a presumption against accepting for employment any person with either a conviction or a caution for theft. The strength or vigour of that presumption is hence a important consideration. As to this the governing rubric in the Policy is in the following terms: "Convictions or cautions which SHOULD lead to rejection unless there are exceptionally compelling circumstances include…". The Policy then goes on to list the different offences to which convictions and cautions subject to the Policy relate. Both the capitalisation of "SHOULD" and the underlining of "exceptionally compelling circumstances" are in the original and serve to emphasise the power of the presumption in favour of rejection which is integral to the Guidance.

(ii) It is not enough that there exist "circumstances" which should lead to a caution for theft being ignored. It is also not enough that those circumstances be "compelling". The "compelling circumstances" must in addition be "exceptional". No definition of these terms is set out and no illustrations or examples are given. Read in an ordinary and everyday way the tenor of the Policy is that a mere caution for even the least serious of offences creates a very powerful reason to reject an applicant without more, and that it will be rare indeed for any other outcome to pertain. Indeed, it is hard to imagine what sort of circumstances would ever meet this test.

(iii) This is the benchmark against which the remainder of the Policy which, at least ostensibly, contemplates the existence of a discretion to ignore a caution must be read. The obvious point is that the presumption is so powerful that the occasions when any discretionary consideration would suffice to rebut it would be exceedingly rare. In the section entitled "General", guidance is given as to the sorts of factors that might at least theoretically be considered relevant. But here the Policy concentrates upon the reasons why factors which might otherwise militate in favour of an applicant should in substance be ignored. It is unremittingly negative in tone and substance. For instance, in relation to cautions it states: "All unlisted cautions must be considered and as a general rule at least 5 years must have elapsed following a caution not listed above. However, in all cases, the impact of the Crown Prosecution Service Prosecution Team Disclosure Manual must be taken into account". The fact that at least 5 years has expired "does not guarantee the applicant is suitable for appointment". The CPS Manual highlights the risk that an officer with a record who is engaged in evidence collection might have to have that prior conviction notified to the CPS for onward disclosed to the defence. It says: "The impact of appointing an individual who is "tainted" cannot be underestimated and can heavily affect the deployment of such an individual". The commentary is entirely negative and one-sided. It does not engage with the subtleties of section 100 Criminal Justice Act 2003 governing bad character or the fact that in many cases there would be no need for any disclosure to be made to the defence of a historical low-level reprimand.

(iv) Moreover, there is no opportunity given in the application form for applicants seeking employment to address the sorts of circumstances which might arise and which could be prayed in aid in seeking to rebut the presumption. The exercise of the discretion is moreover an internal process. Mr Beer QC for the NPCC argued that there was nothing to prevent applicants from volunteering a case for rebuttal of the presumption. But whilst technically correct, this is not an answer. Applicants are not offered an opportunity to present their case and the Policy and its contents are moreover restricted documents and not known outside of the Police.

(v) There is nothing in the Policy which directs the exercise of the discretion along Article 8 lines.

72. It is common ground that post the changes to the law in 2013 (see paragraph [40ff] above) the Policy was irrelevant and unlawful as it should not have been applied to applicants for positions as service support officers. However, and critically, the Decision letter went beyond service support officers and said that it was "unlikely" upon the basis of present guidance that she would be successful in "any" recruitment process for the UK Police Service due to the reprimand (see paragraph [26] above).  Accordingly, the letter covered future applications to become an officer or a cadet.
73. Following changes to the law the net effect is that the Claimant would still have to disclose her caution if she applied to become an officer or a cadet.  We have referred to the interim guidance now in place (cf paragraph [67] above). The Court was informed that there are new policy guidelines in the course of preparation and that these would be statutory in nature.
74. In short, on the basis of the Decision letter the Claimant has been told in terms which can only be described as deliberately off-putting that the chances of her ever being appointed as an officer are slim, and in reality, non-existent.
75. In our judgment, in so far as the position is seriously disputed, the Claimant has locus (as a victim) to challenge the legality of the prevailing position adopted by the Police because she is the addressee of the Decision letter and her future position has been severely prejudiced by it. 

Analysis of the use of disclosed information

76. We turn now to our conclusions on the law relating to use of the reprimand. In our judgment the use of the disclosed information as reflected by the Decision letter, and as mandated by the Policy, was and is unlawful for a multiplicity of reasons.
77. First, the Decision letter is accepted as being unlawful by all parties in that it applied the pre-May 2013 law to a post-May 2013 situation. In law, because the Claimant was applying for a support role, and not to become a constable or a cadet, no request for information should in law have been made to her. She should not have been required or expected to provide the information; and the Police should not have used the information that she provided as part of their assessment of her job application. The refusal as set out in the Decision letter was thus unlawful quite irrespective of Article 8 since the Police took account of wholly irrelevant considerations and failed to comply with the law as it stood as of the date of the application and the decision in issue.
78. Second, the Decision letter also set out to govern any future application that the Clamant might make for a position as a constable or a cadet. The letter, in effect, clarified that any such application would be rejected upon the basis of her prior reprimand. The letter says that it is "unlikely" that she would be accepted for such employment; but because the Claimant's prior reprimand sufficed to preclude her without more from a less sensitive support position it follows as a matter of logic that it must also preclude her from employment in the more sensitive role of constable or cadet.
79. Third, the approach set out in the Decision letter is to apply a very powerful presumption against any employment for a person with a prior reprimand. This follows from the "exceptionally compelling circumstances" test and the manner which this is set out in the Policy (see paragraphs [70] and [71] above). The text which purports to explain how the discretion to ignore prior records should be exercised must be set against the benchmark of this test which, on any sensible reading, creates a virtually insurmountable hurdle to overcome. The discretion is therefore intended to be extraordinarily narrow in truth and is more illusory than real. In the context of Article 8 this means that there is no meaningful consideration and assessment of the sorts of factors which are relevant to Article 8 even though it is common ground that Article 8 applies in principle. Indeed, it is notable that in the Decision letter the Police expressly state that the Claimant has been rejected upon the basis of the prior reprimand only and that no factor relevant to her personal circumstances was taken into account.
80. Fourth, there are no safeguards contained in the Policy to protect the Claimant's private law rights in relation to any application she might make to become a constable or a cadet. The interim guidance does not provide any comfort. There is no appeal or review structure available to her. The mere existence of a right of judicial review is not, in our view, the sort of safeguard that is contemplated in case law. The Claimant's case has taken two years to be heard. It has involved a full-scale confrontation with the State. Legal aid is not routinely available for such a challenge. The Policy, and its application to the facts as set out in the Decision letter, are not "in accordance with the law" in an Article 8 sense and are unlawful.
81. Next, as to whether the interference is necessary in a democratic society, in our judgment it is not. The basic test is that set out in the judgment of Lord Wilson in T at paragraph [39], namely: (1) whether the objective behind the interference was sufficiently important to justify limiting the right of the claimant under Article 8; (2) whether the measures were rationally connected to the objective; (3) whether the interference went no further than was necessary to accomplish the objective; (4) whether, standing back, a fair balance was struck between the right of the Claimant and the interests of the community. There is a good deal of overlap between these tests. Taking each limb of the test separately. First, the objectives behind the interference are (i) the protection of the integrity of criminal investigations; (ii) preservation of trust and confidence by the public in the police force; and (iii), rehabilitation of offenders. These objectives do not justify the interference with the Claimant's private law rights. The "interference" is severe. The Claimant's career path and aspirations have been blocked; she has suffered clinical depression in consequence. On the present facts, we see no connection between the Claimant's reprimand and a risk of harm to public interest factors (i) and/or (ii) if that reprimand is ignored; and, on the other side of the coin, there is actual, tangible, harm to public interest factor (iii) (rehabilitation) by it being taken into account. Second, for analogous reasons there is no rational connection between the interference and the objectives. Third, the interference far exceeded that which was necessary to protect those objectives: employing the Claimant would create no material risk of undermining of the integrity of criminal investigations that she was involved with; public confidence would not be undermined by her employment and, in our view, the public would be troubled if the Claimant's reprimand was used to disqualify a young woman who, prima facie, seems to be well qualified for a career in the Police; and, using the reprimand against her causes serious harm to the very principle of rehabilitation. Fourth, standing back, on the facts of the case, no fair balance has been struck between the interference with the Claimant's rights and the public interest. If a low level historic reprimand of the type in issue suffices to block employment with the Police then the logic behind that refusal (as reflected in the Policy) will preclude virtually anyone with an equivalent low level historical reprimand from such employment.

Disclosure and the 1975 Order

82. We turn next to the 1975 Order as amended, which removes the protection from self-disclosure by Claimant in response to a request posed in any application to become a constable or a cadet. For the reasons given by the Claimant and summarised above at paragraphs [63] and [64] we accept that, so far as a caution of the type in issue is concerned, the 1975 Order violates Article 8. The Secretaries of State advance a number of broad points by way of justification of the bright line disclosure rule in the amended 1975 Order. We do not accept these arguments.
83. First, it is argued that the facts of cases such as T, and P & ors are dissimilar to the present case and make those authorities distinguishable. In our view nothing in the facts of these cases suffices to undermine the precedent value of the principles set out in existing authorities. The harm caused in the present case is indeed worse than on the facts of T. There one claimant had his previous record disclosed but it did not, ultimately, result in employment being lost. In the other case the claimant (RB) was a mature adult when the caution was issued and it did not, unlike in this case, have the potential to blight that individual's entire career.
84. Second, it is argued that Parliament in the 2013 amendments, specifically distinguished between employment in a support role and employment as a constable or cadet. This was a calibrated policy, bright line, decision which the Court should respect. The statement in T (following MM) that there was no margin of appreciation to be accorded to a legislature in relation to the "in accordance with the law" limb of Article 8(2) was wrong or, at the least, inapplicable to a case such as the present. As to this we are bound to follow the guidance in T. We must form our own conclusion. However, we would not in any event have found that the 1975 Order was justified even were we to have accepted that the legislature had an appropriate margin of appreciation. The "calibration" reflected in the 2013 amendments is broad brush. It fails to recognise the wide range of very different situations covered by the disclosure rule. It treats divergent and non-comparable situations in an identical and undifferentiated manner. It treats a conviction in the same way as a caution or reprimand. It treats a conviction for rape, unlawful possession of a firearm, gross indecency, or abuse of children in the same way as a reprimand for the theft of a bar of chocolate from a supermarket. It treats a 13 year old in the same way as it does a 55 year old. It pays no attention to other surrounding circumstance such as the age of the conviction or reprimand or the record of the individual in the intervening years. This blanket and uncalibrated approach pays no account to the policy considerations which are relied upon to justify the rule. This conclusion is all the stronger when it is recalled that rehabilitation is also a key part of the applicable public interest. In our judgment, the law demands a more nuanced approach to differentiation. We do not accept that the justifications advanced can therefore be relied upon to justify this particular strict "bright line".
85. Third, it is argued that the severity of the strict bright line governing disclosure can be attenuated by flexibility in the subsequent use of the disclosed information. As to this the facts of the present case amount to a laboratory experiment testing the practicality of this point. Regulation through use has conspicuously failed. The present case provides powerful support for the Claimant's broader argument that there is an inherent risk in a rule which focuses only upon use. Since the 2013 amendments the Police force has not proven able to introduce a policy which is consistent with the changes to the law. Nor have they been able to draft guidance which takes account of Article 8. We see real force in the Claimant's more general argument that leaving the control mechanism to use leaves open the potential for misuse of the information. In the authorities on the point there has been a real focus upon the realities of life. For instance, in L (cf ibid paragraph [69]) Lord Neuberger pointed out that in a competitive jobs market where an employer was faced with two equally able candidates there was an innate likelihood that the candidate without a prior record would be preferred. The risk of conscious or unconscious, but concealed and invisible, bias is ever-present if an applicant is required to disclose an irrelevant record. In our view the mere fact that there is or may be a discretion governing use is not therefore an answer to criticisms based upon an overly broad disclosure rule.
86. Fourth, we have not in this judgment focused upon retention policies. We note the word of caution sounded in T (ibid paragraphs [21] and [158]) about the legality of retention regimes but we accept the argument of Mr Beer QC for the NPCC that this is not the case to address issues relating to retention of information, not the least because it was not advanced at the forefront of the Claimant's case, which focuses upon disclosure and the inadequacy of use as a control mechanism. There is one point we do however wish to highlight. If the law is that a person in the position of this Claimant is not obliged to disclose a prior record then this begs the question whether the Police can still have recourse to the Police National Computer to verify an applicant's averment that he/she has no record. We understand why the Police would need to verify an applicant's averment. But if accessing the computer enables the employer to discover that the applicant has an otherwise non-disclosable reprimand it then still places the employer in a position where it has knowledge of that record, and the risk of an invisible yet operative bias emerges. Any scheme which prohibited disclosure of cautions of the type in issue in this case would therefore have to address this issue and ensure that the information did not come into the possession of the employer via the back door, whilst still preserving the right of verification.
87. Fifth, the Secretaries of State do not grapple with the Claimant's arguments that it would be relatively straightforward to devise a carve out to the 1975 Order as amended for reprimands and cautions which met criteria of severity and age and which took into account an individual's record otherwise, etc. The only response to this was the argument that this could leave hard cases at the margins. If the cut off point was (say) a caution 3 years ago, it would (it is argued) be unfair to a person whose caution was one month or one week short of that. But that injustice or harshness flows, with far greater potential for unfairness, from the present law. The Courts accept that bright line rules can exist and the Courts also acknowledge that hard choices might have to be made at the margins. The Courts do however require the line to be properly calibrated. A calibrated line drawn where the Claimant advocates is by its nature inherently less likely to cause unfairness, hardship, and hard cases than the calibration that the Secretaries of State contend for, as set out in the amended 1975 Order.
88. For these reasons we do not accept that the 1975 Order is "in accordance with the law". We would add, though we trust it is in any event evident, that our conclusion applies only to low level historical reprimands. We express no views about other cases. It should also be evident that we do not question the broad policy considerations said to apply. Our concern lies with their application to cases such as the present.
89. We consider that it also follows that the 1975 Order is, in relation to reprimands of the type in issue, not necessary in a democratic society. Again, we apply the test set out in the judgment of Lord Wilson in T at paragraph [39].
90. First, the objectives behind the interference are (i) the protection of the integrity of criminal investigations; (ii) preservation of trust and confidence by the public in the police force; and (iii) rehabilitation of offenders. On the present facts, we see no connection between the duty to disclose reprimands of the type in issue and a risk of harm to public interest factors (i) and/or (ii) and, on the other side of the coin, there is actual, tangible, harm to public interest factor (iii) (rehabilitation) by it being disclosed and taken into account. We do not accept that employing a person such as the Claimant with a low level historical reprimand and with an otherwise unblemished record will cause any or any significant risk to criminal investigations. We think it most improbable that on the application of section 100 Criminal Justice Act 2003 there would be any obligation to disclose, as bad character, the Claimant's reprimand in the event that the Claimant acted in the course of an investigation in a way which could make the possibility of disclosure of records relevant. We consider it most unlikely that a judge would allow it to be adduced before a jury. But, even if there was a risk, we observe that in the Policy itself it is accepted that where a person with a record is employed then adjustments might have to be made to eradicate any risk of "taint" to an investigation. Accordingly, the mere existence of a risk is not, even by the Police, treated or viewed as a showstopper precluding employment and it would, in our view, be disproportionate to treat it as such.
91. Second, for the same reasons there is no rational connection between the interference with the Claimant's rights and the objectives.
92. Third, the interference with the Claimant's private rights far exceeded that which was necessary to protect those objectives. We have set out above why we reject the argument that employing the Claimant would create a risk of undermining of the integrity of criminal investigations that she was involved with. We also take the view that the confidence of the rational man or woman on the street would not be undermined by the employment of a person such as the Claimant and in fact would be troubled if the Claimant's trivial reprimand was used to disqualify a young woman who, prima facie, seemed to be well qualified for a career in the Police. We also conclude that using such a reprimand against a person such as the Claimant causes serious harm to the principle of rehabilitation.
93. Fourth, standing back, on the facts of the case, the disclosure rule fails to strike a fair balance between the interference with the Claimant's rights and the public interest.

G. Conclusion

94. This claim succeeds. First, the Decision letter was adopted in violation of Article 8 in that it reflected a policy whereby historical low-level reprimands served to preclude employment in a supporting role within the police. It was in addition unlawful because it was inconsistent with the 1975 Order as amended as it applied to support roles within the Police. Moreover, the Decision letter was yet further unlawful under Article 8 in that in substance it served to preclude the Claimant from seeking employment as an officer or a cadet within the police. Second, the Policy which was applied by the Police at the time to determine the Claimant's application for employment was unlawful under Article 8 insofar as it precluded employment for a person in the position of the Claimant in either a supporting role or as an officer or a cadet. That policy remains unlawful insofar as it precludes employment in such roles. Third, the 1975 Order is unlawful under Article 8 in so far as it applies to reprimands of the type in issue.
95. The Court has been informed (following circulation of the draft judgment to the parties) by the NPCC that a new Vetting Code of Practice is imminently to be placed before Parliament which has been approved by the Home Secretary. We also take into consideration the comments of the NPCC summarised at paragraph [9] above. In these circumstances, given that the policy applied by the Police generally is under scrutiny and in a state of flux, we propose to limit the formal declaratory relief that we make to the 1975 Order. This does not of course mean that the analysis set out in this judgment in relation to other matters is intended to have any lesser force, simply because it is not formally reflected in declaratory relief. In relation to the 1975 Order we endorse the form of words agreed between the Secretaries of State and the Claimant in the following terms. This is intended to reflect the conclusions we have arrived at in this judgment:

"The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 cannot be read or given effect in a way which is compatible with the Claimant's rights under Article 8 of the Convention to the extent that it excludes the application of sections 4(2) and (3)(b) of, and paragraphs 3(3) and (5) of Schedule 2 to, the Rehabilitation of Offenders Act 1974 to constables or cadets, in respect of low level, historical cautions."

H. Anonymity

96. We heard argument on whether the Claimant's identity should be anonymised. In our view it follows from the arguments that we accept that disclosing the Claimant's name risks disclosing her prior reprimand into the public domain which is part of the vice that we have accepted is unlawful and the Claimant should be protected from. We have duly anonymised this judgment.

Note 1   See paragraph [9] above. There is some uncertainty as to the precise version of the policy which was in force at the time. Given that it has not been argued that there is any material difference between the different versions we proceed upon the basis that we have referred to the correct version.     [Back]

Note 2   The Claimant points out that this is an error and refers to Schedule 1 to the 1975 Order.    [Back]

Note 3   https://www.gov.uk/government/publications/police-workforce-england-and-wales-31-march-2015/police-workforce-england-and-wales-31-march-2015    [Back]