R, R (On the Application Of) v The National Police Chief's Council & Anor

Article 8 applies to the retention, disclosure and use of criminal-record information. A disclosure or vetting scheme must contain safeguards that permit the proportionality of interference with private life to be adequately examined. A blanket rule requiring lifelong disclosure of a low-level historical reprimand must be sufficiently calibrated by reference to the nature of the conduct, the disposal, the passage of time, the relevance of the information to the employment and the individual’s subsequent record. Subsequent discretion in the use of disclosed information is not necessarily an adequate safeguard, particularly where the applicable policy creates a virtually insurmountable presumption against employment. The court held that the relevant police policy and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 were incompatible with Article 8 insofar as they applied to low-level historical reprimands.

The claimant received a reprimand for a minor theft committed when she was 13. She later applied for a police support role and disclosed the reprimand. South Wales Police rejected her application under a vetting policy and indicated that the reprimand was likely to prevent future recruitment in the police service.

The claim challenged the use of the reprimand, the police vetting policy and the statutory disclosure regime under Article 8 of the Convention. The central issues were whether the interference was in accordance with the law and whether it was necessary in a democratic society.

1. Use of the information. The decision rejecting the claimant’s application for a support role was unlawful independently of Article 8 because, after the 2013 amendments, she was not required to disclose the reprimand for that role and the police treated irrelevant information as decisive.
2. The policy was unlawful under Article 8. Its requirement for “exceptionally compelling circumstances” created a virtually insurmountable presumption against employing anyone with a caution or reprimand for theft. It gave no meaningful opportunity to assess personal circumstances, contained no adequate appeal or review mechanism and did not direct decision-makers to apply Article 8 criteria.
3. The interference was not necessary in a democratic society. The court applied the four-stage proportionality approach identified by Lord Wilson in R (T) v Chief Constable of Greater Manchester Police [2015] UKSC 35: sufficiently important objective, rational connection, necessity and fair balance. A minor, historic reprimand committed at age 13 had no rational connection with the risks relied upon, while its use seriously damaged rehabilitation and the claimant’s career prospects.
4. Disclosure. The court held that the disclosure rule in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was not in accordance with the law insofar as it required disclosure of a low-level historical reprimand by a person applying to become a constable or cadet. The 2013 distinction between support roles and constable or cadet roles was too broad and failed to differentiate between substantially different offences, ages, disposals, elapsed periods and intervening conduct.
5. The disclosure rule was also unnecessary in a democratic society. It lacked a rational connection with protecting criminal investigations or public confidence, went further than necessary and failed to strike a fair balance. The claim succeeded. Formal declaratory relief was limited to the incompatibility of the 1975 Order with Article 8.

First-instance judicial review proceedings in the Administrative Court. The court granted limited declaratory relief concerning the statutory disclosure regime.