P, R (on the application of) The Secretary of State for the Home Department & Anor

A statutory regime requiring disclosure of criminal-record data engages Article 8. It is in accordance with the law only if its safeguards prevent arbitrary disclosure. An individual right of review is not invariably required. A sufficiently calibrated bright-line rule may be lawful where there is a clear and enduring connection between the offending and public protection.

However, a rule which requires lifelong disclosure without regard to the nature and disposal of the offence, lapse of time, or its relevance to the activity sought, and without a means of refinement, is indiscriminate. The multiple-conviction rule and the serious-offence rule in the Police Act 1997 scheme failed that standard. Disclosure must also be necessary and proportionate in the individual case. The legislature, rather than the court, must devise any revised filtering or review mechanism.

Four linked appeals concerned the revised regime for disclosure of spent convictions, cautions, warnings and reprimands on criminal record certificates. P challenged lifelong disclosure of more than one spent conviction. G challenged the mandatory disclosure of juvenile reprimands for a sexual offence and the refusal by Surrey Police to expunge them. W challenged disclosure of a 31-year-old conviction for assault occasioning actual bodily harm. Ms Krol challenged the Metropolitan Police Commissioner’s refusal to expunge a caution for assaulting her young child.

The appeals arose from decisions in [2016] EWHC 89 (Admin), [2016] EWHC 295 (Admin), [2015] EWHC 1952 (Admin) and [2014] EWHC 4552 (Admin). The central issues were whether the revised scheme complied with Article 8 and whether particular disclosure or retention decisions were lawful and proportionate.

1. The appeals of the Secretaries of State in P and G were dismissed. W’s appeal was allowed. Ms Krol’s appeal, P’s cross-appeal on remedy, and G’s renewed application for permission to appeal concerning expungement were dismissed or refused.

2. The ratio of the Supreme Court decision in T v Chief Constable of Greater Manchester Police was found in the combined effect of Lord Reed’s reasoning at paras 113, 114 and 119. A regime requiring state disclosure of stored personal data lacks adequate safeguards where, cumulatively, it makes disclosure indiscriminately and provides no sufficient means to examine proportionality. A right to individual review is not an absolute prerequisite. A bright-line rule can be lawful where the relationship between the information and public protection is sufficiently clear.

3. The multiple-conviction rule was not in accordance with the law. It required disclosure automatically once there were two convictions, without regard to the offences’ nature, disposal, age, lapse of time, relevance to the work sought, or any independent review. The serious-offence rule was also insufficiently calibrated. Its distinction by offence seriousness alone did not supply adequate safeguards where disclosure was lifelong and automatic.

4. Article 8 proportionality nevertheless required a separate assessment of whether disclosure was necessary in a democratic society. Parliament had substantial latitude in designing general safeguarding measures, but disclosure needed a realistic link to public protection. In P’s case, the connected theft and bail convictions did not disclose a pattern of offending. In G’s case, conduct at age 13 did not itself rationally demonstrate a continuing public risk nine years later. In W’s case, disclosure of an ABH conviction 31 years later was neither relevant to public risk nor necessary and proportionate. Information might, where justified, instead be considered as discretionary soft intelligence on an enhanced certificate.

5. The refusal to expunge G’s reprimands was lawful. The original disposal was lawful and the Chief Constable’s refusal fell within the applicable deletion policy. The retention of Ms Krol’s caution was also lawful, proportionate and subject to a future review mechanism. Its circumstances maintained a clear connection with safeguarding.

6. A declaration that secondary legislation is ultra vires is not automatic where its application violates Article 8 only in marginal cases. Since the multiple-conviction provision would not invariably infringe Convention rights, the tailored declaration made below was just and appropriate. It was for Parliament to decide how to revise the scheme.

• Court of Appeal (Civil Division): The court dismissed the Secretaries of State’s appeals in P and G, allowed W’s appeal, and dismissed Krol’s appeal. It also dismissed P’s cross-appeal on remedy and refused G permission to appeal concerning expungement.
• High Court, Divisional Court: In P, [2016] EWHC 89 (Admin), the court held that the multiple-conviction disclosure scheme was not in accordance with Article 8 and made a tailored declaration.
• High Court, Administrative Court: In G, [2016] EWHC 295 (Admin), the court upheld the lawfulness of the reprimands but held the revised disclosure scheme incompatible with Article 8 as applied to G.
• High Court, Administrative Court: In W, [2015] EWHC 1952 (Admin), the claim challenging disclosure of the ABH conviction was dismissed.
• High Court, Administrative Court: In Krol, [2014] EWHC 4552 (Admin), the challenge to the refusal to expunge the caution was dismissed.