T, R (on the application of) v Greater Manchester Police & Anor

The statutory requirement to disclose convictions, cautions and warnings on enhanced criminal record certificates was held compatible with Article 8 ECHR. The first-instance court was bound by the Supreme Court’s reasoning in R(L) v Commissioner of Police for the Metropolis that the proportionality review applicable to discretionary police information did not extend to convictions and cautions. The court considered that an unqualified disclosure regime, particularly for childhood warnings, might otherwise be disproportionate because it lacked filtering or review. The Rehabilitation of Offenders Act 1974 exceptions order was lawful because it reflected the same policy and could not be unlawful where the underlying disclosure provisions were compatible. The court indicated that, absent binding authority, it would have found the no-exception regime incompatible with Article 8.

The claimant challenged an enhanced criminal record certificate issued under Part V of the Police Act 1997. It disclosed a warning for bicycle theft administered when he was 11, despite his having had no further criminal involvement. He sought a declaration of incompatibility concerning the statutory disclosure provisions and a declaration that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was ultra vires.

The central issues were whether compulsory disclosure of convictions, cautions and warnings breached Article 8 ECHR, particularly in the absence of a filtering or review mechanism, and whether the related exceptions order was unlawful.

1. Disclosure under the Police Act 1997. The claim for a declaration of incompatibility was dismissed. The court followed the binding effect of R(L) v Commissioner of Police for the Metropolis [2009] UKSC 3, which established that disclosure decisions under the discretionary information provisions engage Article 8 and require a proportionality assessment.
2. The court interpreted the majority reasoning in L as distinguishing convictions and cautions from discretionary police information. Convictions and cautions were treated as reliable evidence of criminal offending. Although their relevance to a particular post might be debated, the legislation was not thereby incompatible with Article 8. The same reasoning applied to warnings.
3. The claimant’s reliance on R(F) v Justice Secretary [2010] UKSC 17 did not overcome L. Although review mechanisms may be highly material to proportionality in indefinite notification regimes, the first-instance court could not apply that reasoning to invalidate the present statutory scheme contrary to its understanding of the Supreme Court’s decision.
4. The court nevertheless considered the claimant’s proportionality argument powerful. A system with no exceptions or review could impose serious and continuing effects on Article 8 rights, especially where a minor non-violent warning was administered to a child and followed by many years without offending. If unconstrained by L, the court would have found that system disproportionate.
5. The Exceptions Order. The challenge to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was dismissed. The Order and the disclosure provisions pursued the same protective policy. It was therefore lawful for specified employers to ask about spent cautions and warnings and to act on truthful answers. The court added, obiter, that Article 8 did not necessarily impose a positive obligation requiring the state to permit concealment of such information from private employers.