Supreme Court rejects Government’s appeal on criminal record checks

This morning the Supreme Court has ruled against the Government in a case concerning mandatory, blanket disclosure requirements under Part V of the Police Act 1997.  The two respondents (known as T and JB) were required to obtain enhanced criminal record certiticates (ECRCs) for their study (T) and employment (JB).  T was training to be a PE teacher and JB was applying for a job as a care worker.  The certificates for each of them disclosed old and irrelevant information: for T, two warnings received from the police when he was 11 years old for attempted theft of a bicycle, and for JB, a caution in relation to a suspected shoplifting attempt of a packet of false nails in 2001. Under the statutory scheme then in place, these warnings and cautions would always be disclosed whenever T or JB applied for an ECRC, a necessary requirement in their chosen professions because they involve working with children or vulnerable people.

 

Both respondents brought judicial review proceedings, claiming that the disclosures were incompatible with the right to private life protected by Article 8 of the European Convention on Human Rights.

 

In the High Court, both applications were refused.  However, last year the Court of Appeal found in their favour, holding that the legislation requiring disclosure of all convictions and cautions for Criminal Records Bureau (CRB) checks - whatever the nature of the offence, the circumstances in which they were received, or when they were received - breached Article 8.  The Court of Appeal held it would be for Parliament to devise a new, proportionate scheme.

 

The Home Secretary and the Secretary of State for Justice appealed to the Supreme Court.  The Supreme Court has today unanimously rejected the appeal.  The Court has held that in its application to T and JB, the regime set up by the Police Act 1997 and related secondary legislation was not necessary and ti was disproportionate.  There was no rational connection between the disclosure required and any assessment of risk.  The majority (Lord Wilson dissenting) also held that the statutory regime did not satisfy the requirement that it be ‘in accordance with law’ under Article 8.  The Court allowed the Secretaries of State appeal in the T case in one discrete respect, concerning the Court of Appeal’s approach to relief.  It was not necessary for the Court of Appeal to have declared the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 ultra vires, and there was no need for a judicial remedy in respect of that Order.

 

Stephen Cragg QC and Azeem Suterwalla acted for the respondent JB, instructed by Howells LLP.

 

Caoilfhionn Gallagher and Conor McCarthy acted for the Equality and Human Rights Commission, who intervened in the appeal.

 

Further Information

The Supreme Court’s judgment is available here and a short press summary is available here

 

In the media

BBC News

EHRC Press Release

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