R v Secretary of State for the Home Department and another

Mandatory state disclosure of every spent conviction and caution, without regard to the offence, disposal, elapsed time or relevance, lacks adequate safeguards against arbitrary interference with private life. It may also go further than necessary and fail to strike a fair balance under article 8.

A declaration of incompatibility identifies legislation as capable of incompatible operation; it does not invalidate the legislation. Where subordinate legislation violates rights only in particular applications, the court should not automatically declare the entire instrument ultra vires. Any remedy must be effective, just and proportionate.

T received two warnings for bicycle theft when aged 11. JB received one caution for minor shoplifting. Neither had any other criminal record. Enhanced criminal record certificates subsequently disclosed those matters and jeopardised their entry into work or study involving children or vulnerable adults.

The Court of Appeal, [2013] EWCA Civ 25, declared that Part V of the Police Act 1997 was incompatible with article 8. It also declared the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 ultra vires. The Secretaries of State appealed.

The central issues were whether the disclosure regimes satisfied article 8 and, if not, what remedies were lawfully and proportionately available.

1. Disposition. The court unanimously dismissed the appeal against the declaration of incompatibility concerning sections 113A and 113B of the Police Act 1997. It unanimously allowed the appeal against the declaration that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was ultra vires. No substitute remedy concerning the Order was required.

2. Private life and interference. A caution forms part of private life from the outset. State disclosure of stored cautions or spent convictions can interfere with article 8, particularly where it jeopardises access to a chosen field of employment. The certificates issued to T and JB interfered with their private lives.

3. Legality. Lord Reed, with Lord Neuberger, Lady Hale and Lord Clarke, held that legislation governing state-held personal data must contain safeguards enabling the proportionality of disclosure to be examined. Sections 113A and 113B required indiscriminate disclosure without distinctions based on the offence, disposal, elapsed time or relevance, and without independent review of mandatory disclosure. The interference was therefore not in accordance with law. Lord Wilson disagreed on this ground, considering those defects matters of necessity and proportionality rather than legality.

4. Necessity. All members agreed that the disclosures also failed the requirement of necessity. Applying the four-stage proportionality inquiry stated in R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45, the protective objective was important and the general regime was rationally connected to it. The indiscriminate disclosure of these minor cautions nevertheless went further than necessary and failed to strike a fair balance. T’s childhood warnings had no rational relationship to his suitability to work with children, while disclosure of JB’s single minor caution was disproportionate to its likely protective value.

5. Positive obligations. Classification of the challenge to the 1975 Order as involving a positive or negative obligation did not determine the result. The essential question was whether the law struck a fair balance between private life and the community interest.

6. Remedies. The declaration concerning the 1997 Act properly notified Parliament that the legislation was capable of incompatible operation without affecting its validity or continued enforcement. By contrast, the 1975 Order could operate compatibly in many cases. Invalidating the entire Order would also have undermined the statutory basis for millions of criminal-record certificates and affected third parties who had lawfully relied upon it. Such relief was neither just nor proportionate.

7. The Order could not be read as making every individual decision-maker responsible for deciding article 8 compatibility. A statutory declaration of incompatibility was unavailable because the Rehabilitation of Offenders Act 1974 did not prevent removal of the incompatibility. No further remedy was necessary because the Order had been amended, T had suffered no separate adverse consequence from its operation, and judicial recognition of the violation afforded sufficient satisfaction.

1. United Kingdom Supreme Court: Dismissed the appeal concerning the declaration of incompatibility under the Police Act 1997; allowed the appeal concerning the declaration that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was ultra vires.
2. Court of Appeal: In [2013] EWCA Civ 25 , reported at [2013] 1 WLR 2515 , allowed T’s appeal and JB’s application. It declared Part V of the 1997 Act incompatible with article 8 and the 1975 Order incompatible and ultra vires.
3. High Court: T’s judicial review claim was dismissed. A judge refused JB permission to apply for judicial review.