W, R (on the application of) v The Secretary of State for Justice

A statutory disclosure scheme may use bright-line categories where individual assessment would be impractical, uncertain or unfair. Parliament may require disclosure of convictions for specified violent offences regardless of the sentence imposed or the time elapsed, provided the scheme pursues a legitimate protective objective and falls within the margin of judgment accorded to Parliament. The possibility that a different line could have been drawn does not establish disproportionality. The court must assess whether Parliament attached insufficient importance to Convention rights, while recognising that legislative alternatives are primarily a matter for Parliament.

The claimant was convicted of assault occasioning actual bodily harm under section 47 of the Offences against the Person Act 1861 when aged 16. He received a conditional discharge and had no further convictions for 31 years. In 2013 the Disclosure and Barring Service disclosed the conviction because ABH was within the statutory category of offences requiring disclosure.

He sought judicial review, alleging that mandatory disclosure disproportionately interfered with his Article 8 right to respect for private life. He accepted that the amended regime was prescribed by law and pursued a legitimate public-protection objective. The issue was whether Parliament had struck a fair balance by including ABH without allowing the sentence, age, circumstances or subsequent good conduct to prevent disclosure.

1. Claim dismissed. The amended disclosure regime was not shown to be a disproportionate interference with Article 8 rights.
2. The legislative objective was the protection of children, vulnerable adults and others from persons who might mistreat, neglect or defraud them. The measures were rationally connected with that objective. The court was required to show substantial restraint because the questions of necessity and fair balance involved fine judgments entrusted principally to Parliament, as explained in R (T) v Chief Constable of Greater Manchester Police and others [2014] UKSC 35.
3. Parliament was entitled to adopt a filtering-in scheme and to draw a bright line between common assault and ABH. ABH was included because it was a specified violent offence in Schedule 15 to the Criminal Justice Act 2003, and was not an offence that was undeniably minor.
4. The sentence imposed was not required to determine disclosure. A non-custodial disposal might reflect mitigation, a guilty plea or personal circumstances and would not necessarily demonstrate that the offence was minor. Requiring investigation of the facts, sentencing material and historic circumstances in every case would be impractical, uncertain and potentially unfair.
5. The court rejected the submission that the existence of less intrusive alternatives, or the fact that Parliament might have drawn the line elsewhere, established disproportionality. The statutory scheme had been carefully considered, debated and approved by both Houses. The approach was consistent with the recognition in R (T) v Chief Constable of Greater Manchester Police and others [2013] EWCA Civ 25 that proportionate bright-line rules need not provide for individual consideration of every case.
6. The principle stated in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, and accepted in R (T) v Chief Constable of Greater Manchester Police and others [2014] UKSC 35, applied: alternative legislative solutions do not themselves render legislation unjustified unless it is apparent that insufficient importance was attached to Convention rights.

The judgment states that the Court of Appeal and Supreme Court had previously considered challenges to the earlier disclosure regime:

• Court of Appeal: In R (T) v Chief Constable of Greater Manchester Police and others [2013] EWCA Civ 25, the court found the pre-May 2013 regime disproportionate in important respects and identified the legitimacy of carefully framed bright-line rules.
• Supreme Court: In R (T) v Chief Constable of Greater Manchester Police and others [2014] UKSC 35, reported at [2015] AC 49, the appeals concerning the earlier regime were dismissed or allowed as described in the judgment.
• High Court (Administrative Court): The present claim concerning the amended regime was dismissed.