P and A, R (on the application of) v Secretary of State for Justice & Ors

A statutory scheme requiring lifetime disclosure of all convictions where a person has more than one conviction may interfere with Article 8 rights. Clear statutory language is insufficient if the scheme lacks adequate safeguards against arbitrariness and does not permit the proportionality of disclosure to be examined. Where the rules can produce questionable results at their margins, some mechanism for testing proportionality is required. Administrative convenience and the scheme’s simplicity cannot cure a failure to meet the quality-of-law requirement. The disclosure requirement must also bear a rational connection with the protection of vulnerable people and the suitability of applicants for sensitive activities.

Two judicial review claims challenged amendments made by the Police Act (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013. The amendments introduced filtering for some single convictions, but required disclosure throughout life where a person had more than one conviction. The claimants had old, minor convictions and argued that the revised scheme was incompatible with article 8 of the ECHR. The defendants relied on Parliament’s choice of a bright-line rule, distinctions based on seriousness, sentence and elapsed time, and the practical difficulties of individual review. The central issue was whether the amended scheme satisfied the legality and necessity requirements of article 8.2.

1. The claims succeeded. The precise declarations and any further relief were left for further written argument.
2. The court treated the approach in R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35 as requiring an assessment of whether the statutory scheme afforded adequate protection against arbitrariness and contained safeguards enabling proportionality to be examined. This requirement concerns the quality of law and is distinct from the ultimate proportionality question.
3. The amended Police Act 1997 scheme remained capable of producing arbitrary results. It required lifetime disclosure of all convictions merely because there was more than one conviction, despite differences in age, circumstances, seriousness, sentence, elapsed time and present relevance. The absence of any mechanism for independent or other effective review was material.
4. Once the scheme failed the requirement that an interference be in accordance with the law, the State’s margin of appreciation and considerations of administrative convenience had no operative role. The court was also unpersuaded that a suitably limited review mechanism would necessarily be unworkable.
5. In any event, the convictions in the present cases did not bear a rational relationship, for the claimants’ entire lifetimes, to the statutory aims merely because each claimant had more than one conviction. The necessity requirement was therefore also failed.
6. The amended Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was approached more cautiously, following the distinction drawn in R (T). The court did not decide its legality limb, but held that the lifetime disclosure requirement was not necessary in a democratic society because it lacked a rational connection with assessing suitability across the activities covered by the Order.