R (T) v Chief Constable of Greater Manchester Police

The Supreme Court considered whether disclosure of cautions and spent convictions under Part V of the Police Act 1997 and the effect of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 engaged and infringed Article 8 ECHR. The court held that systematic retention and mandatory disclosure under sections 113A and 113B of the Police Act 1997 (as then drafted) interfered with private life and, for reasons identified by the European Court of Human Rights in MM v United Kingdom, failed the Convention requirement of being "in accordance with the law" because of an absence of adequate safeguards and filtering; the Court of Appeal’s declaration of incompatibility in respect of the 1997 Act was therefore upheld.

By contrast, the Court rejected the Court of Appeal’s declaration that the 1975 Exceptions Order was ultra vires the 1974 Act: the Supreme Court allowed the appeal in relation to ultra vires, concluding there was no justification for declaring the whole Order void and that no judicial remedy was required in respect of it given subsequent legislative amendments. The judgment addressed legality, necessity/proportionality under Article 8, and the appropriate remedies under the Human Rights Act 1998, including declarations of incompatibility under section 4 HRA and limits on remedies for subordinate legislation.

Background and facts:

• T (received two police warnings aged 11) and JB (received a caution aged 41) had those disposals disclosed on enhanced criminal record certificates (ECRCs) when applying for work or training, jeopardising their prospects.
• Their claims challenged the lawfulness of disclosure: T challenged both the operation of Part V of the Police Act 1997 (obligation of DBS to include cautions/spent convictions on certificates) and the scope of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (which excepted many questions and decisions from the protections of the 1974 Act); JB challenged disclosure under the 1997 Act in her circumstances.

Procedural posture: These appeals came from the Court of Appeal ([2013] EWCA Civ 25; reported [2013] 1 WLR 2515) which had upheld declarations of incompatibility in respect of the 1997 Act and had declared the 1975 Order ultra vires. The Secretaries of State appealed to the Supreme Court.

Nature of relief sought: declarations of incompatibility under section 4 of the Human Rights Act 1998, judicial review remedies and declarations concerning the ultra vires status of subordinate legislation.

Issues framed by the court:

1. Whether cautions and spent convictions fall within the scope of "private life" under Article 8.
2. Whether disclosure under the Police Act 1997 and the obligations created by the 1975 Order constituted an interference with Article 8 and, if so, whether that interference was "in accordance with the law" and "necessary in a democratic society" (proportionality).
3. Whether the 1975 Order was ultra vires the 1974 Act and what remedies were appropriate under the Human Rights Act 1998.

Court’s reasoning:

• The court accepted that cautions and spent convictions, when systematically kept and disclosed, engage Article 8 and may interfere with private life; it applied Strasbourg authorities (notably Rotaru, S v UK and MM v UK) and domestic precedent (R (L) v Commissioner of Police).
• Relying on MM v UK, the court concluded that the 1997 Act as then drafted permitted indiscriminate, mandatory disclosure without adequate statutory safeguards or filtering criteria (no distinction by nature of offence, disposal, time elapsed or relevance) and without adequate independent review, and therefore failed the requirement of being "in accordance with the law"; the Court of Appeal’s declaration of incompatibility in respect of sections 113A and 113B was therefore upheld.
• On the 1975 Order the court held that the Order’s exceptions to the protective effect of the 1974 Act raised different issues. The Supreme Court allowed the Secretaries of State’s appeal against the Court of Appeal’s declaration that the whole 1975 Order was ultra vires, reasoning that declaring the entire Order ultra vires was disproportionate and would have far-reaching, unjustified consequences; the court found no need for a further judicial remedy in respect of the Order because subsequent amendments and the realistic prospects of parliamentary action made judicial intervention unnecessary.

Wider context: the court emphasised the narrowness of remedies where subordinate legislation is involved, the role of section 4 HRA declarations of incompatibility and respect for Parliamentary supremacy, and noted that the government had since introduced amendments (SI 2013/1198 and SI 2013/1200) to narrow disclosure and provide filtering.

The appeal was allowed in part. The Supreme Court dismissed the Secretaries of State’s appeal against the Court of Appeal’s declaration of incompatibility in respect of sections 113A and 113B of the Police Act 1997 (the statutory scheme for criminal record certificates) because the 1997 Act (as then drafted) failed the Article 8 requirement of being "in accordance with the law" for lack of adequate safeguards and filtering; however the Court allowed the appeal against the Court of Appeal’s declaration that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was ultra vires, holding that declaring the entire Order ultra vires was not a just, proportionate or appropriate remedy and that no judicial remedy in relation to the Order was necessary in light of subsequent legislative amendment.

On appeal from the Court of Appeal [2013] EWCA Civ 25 (reported [2013] 1 WLR 2515). The Supreme Court delivered judgment as [2014] UKSC 35 on 18 June 2014.