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National law and policy on disclosure and use of conviction data unlawful.

The Administrative Court (Lord Justice Fulford and Mr Justice Green) today handed down the judgment in R (R) v. National Police Chief’s Council and Secretary of State for Justice [2017] EWHC 2586 (Admin). In this important judgment about the right to privacy, the court concluded that the following were unlawful:

 

(1) The Statutory Instrument which means an applicant for specified jobs (such as a police constable) has to disclose a caution, and that she could be prejudiced by that caution;

 

(2) The national police policy as to whether a job should be refused to someone on the basis of a caution; and

 

(3) The decision to refuse the claimant a job in the police, on the ground that she had received a caution. 

 

Adam Straw represented the claimant, instructed by Richard Easton at Sonn McMillan Walker. 

 

The Claimant, ‘R’, received a reprimand when aged 13 on the ground that she helped some other girls shoplift a sarong from Primark. Later, she completed a degree in criminology, and wished to pursue a career working for the police. Her application was rejected solely on the basis of her reprimand. 

 

When a conviction becomes spent, it can normally no longer be relied on as a basis for refusing someone employment. The Rehabilitation of Offenders Act 1974 provides protections to a job applicant, and others, to ensure she is not prejudiced by a spent conviction or caution. However, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 provides that, in the context of a number of jobs, including a police constable, those protections do not apply. That means a person may be required to disclose her convictions and cautions when applying for those jobs. 

 

The High Court concluded that the 1975 Order is incompatible with the right to a private life in article 8 ECHR. That was firstly because it is not ‘in accordance with the law’, and secondly because it is not 'necessary in a democratic society'. The interference in the claimant’s article 8 rights was severe, and there is no rational connection between the reprimand, and her preferred employment. 

 

The NPCC is responsible for a national policy regarding recruitment to the police. The policy says that if the applicant had one of a specified range of convictions or cautions (including for theft) she should be rejected unless there are exceptionally compelling circumstances. The High Court concluded that the policy is unlawful as it misstates the effect of legislative provisions. In addition, the policy is incompatible with article 8. That was because it contains a very powerful presumption against employing someone who had a prior reprimand, and means that there is no meaningful consideration and assessment of the factors that are relevant to article 8. Further, there are no safeguards in the policy which enable the applicant to appeal or review a decision to refuse her employment. The court concluded that the policy was neither in accordance with the law, nor necessary in a democratic society. 

 

Finally, the court concluded that the decision by the police to refuse the claimant employment on the basis of her prior reprimand was unlawful as it was in breach of article 8.