T, R (on the application of) v Greater Manchester Chief Constable & Ors

A statutory scheme requiring the mandatory disclosure of all recordable convictions and cautions on enhanced criminal record certificates is incompatible with article 8 where it operates without regard to relevance. Relevance depends on matters including the seriousness and age of the offence, the offender’s age, the disposal, elapsed time, subsequent offending and the nature of the proposed work. Simplicity, administrative convenience and employer assessment do not cure a disproportionate scheme. The same fair-balance analysis applies to provisions removing rehabilitation protections. By contrast, excluding very serious offences from rehabilitation may fall within Parliament’s discretionary judgment. Section 3 of the Human Rights Act 1998 does not permit the court to make major legislative choices.

Three linked appeals concerned the compatibility with article 8 of the criminal-record disclosure and rehabilitation regimes. T had received two police warnings at age 11 for stolen bicycles. JB had accepted a caution for the attempted theft of false nails. Both later faced disclosure of those matters when seeking work involving children or vulnerable adults.

AW had received substantial custodial sentences for manslaughter and robbery committed at age 16 and challenged the exclusion of sentences exceeding the statutory threshold from rehabilitation. The Administrative Court dismissed T’s claim because the judge considered himself bound by [2009] UKSC 3. Permission had been refused in JB’s case but an appeal was later permitted, while AW’s renewed application for permission was before the court. The central issues were whether the statutory schemes interfered with article 8 and, if so, whether they were justified.

1. T and JB: the appeals were allowed. The mandatory disclosure of recordable convictions and cautions under the Police Act 1997 interfered with private life by disclosing private information and impairing employment prospects.
2. The disclosure pursued legitimate aims, including protecting children and vulnerable adults and enabling employers to assess suitability. It was nevertheless disproportionate. The scheme contained no relevant filter based on the seriousness of the offence, the offender’s age, the disposal, elapsed time, subsequent offending or the nature of the proposed work. Disclosure did not automatically prevent employment, but an adverse certificate was realistically liable to operate as a near-conclusive obstacle. Employer assessment could not substitute for the required statutory balancing exercise.
3. The simplicity of a bright-line rule and administrative or resource difficulties did not justify a scheme which significantly failed to achieve its protective purpose. Parliament could devise proportionate sub-rules without requiring individual assessment in every case.
4. The court held that R (L) concerned discretionary disclosure of police intelligence and did not decide the compatibility of mandatory disclosure of convictions and cautions. Lord Neuberger’s observations on convictions and cautions were assumptions, not necessary reasoning.
5. The same fair-balance analysis applied to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. The court declined to read it down under section 3 of the Human Rights Act 1998, since that would transfer major legislative choices to employers and employees.
6. AW: permission to appeal was refused. Parliament could decide that offences of sufficient seriousness should never become spent.
7. T and JB received declarations that the Police Act 1997 was incompatible with article 8. T also received a declaration that the Order was incompatible with article 8 and ultra vires the 1974 Act.

• Court of Appeal (Civil Division): appeals by T and JB allowed; AW’s renewed application for permission refused. Declarations of incompatibility were made concerning the Police Act 1997 and the Order.
• High Court, Queen’s Bench Division, Administrative Court: T’s claim was dismissed because the judge considered himself bound by [2009] UKSC 3. JB’s permission application was refused, although permission to appeal was later granted. AW’s permission application was refused on the papers and renewed before the Court of Appeal.