QSA & Ors, R (On the Application Of) v Secretary of State for the Home Department & Anor

A statutory scheme requiring disclosure of spent convictions must contain safeguards permitting relevant distinctions and proportionality assessment. A blanket multiple-conviction rule operating without regard to the nature of the offence, disposal, lapse of time, personal circumstances or relevance to the employment is arbitrary. Applied through the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, the rule was neither in accordance with the law nor necessary in a democratic society under Article 8 ECHR. The same neutral rule did not unlawfully discriminate against women under Article 14, because its general operation affected men disproportionately and pursued a legitimate protective aim proportionately. Recording and retaining conviction data caused only a limited and justified Article 8 interference. Disclosure was an adverse consequence of conviction, not a criminal penalty or breach of a trafficking victim’s right to anonymity.

Three claimants, each convicted many years earlier of multiple offences under section 1 of the Street Offences Act 1959, challenged the continuing recording and disclosure of those convictions when applying for work involving children or vulnerable adults.

The claimants relied on Articles 4, 7, 8 and 14 ECHR, Directive 2011/36/EU and related international instruments. They challenged the multiple-conviction rule in the disclosure scheme, the recording and retention of conviction data, the criminalisation of soliciting, and the alleged consequences for trafficking victims. Permission had been granted on some grounds and refused on others by William Davis J.

1. Ground 1 succeeded. The court was bound by R (on the application of P and others) v Secretary of State for the Home Department [2017] EWCA Civ 321 to hold that the multiple-conviction rule in sections 113A and 113B of the Police Act 1997 was not in accordance with the law. It operated automatically, without regard to the nature of the offence, disposal, lapse of time or relevance to the employment sought. It was also unnecessary and disproportionate under Article 8.
2. The same conclusion applied to the multiple-conviction rule in the Exceptions Order. Although the Rehabilitation of Offenders Act 1974, the Exceptions Order and the Police Act 1997 were not coterminous, they operated together. The applicant’s choice whether to seek relevant employment did not save a scheme which required disclosure bearing no rational relationship to present risk.
3. Leaving assessment to the employer was insufficient. No reasonable employer could rationally regard historic soliciting convictions as relevant to present risk in every case. Disclosure also caused stigma, embarrassment and labour-market disadvantage, and could impede persons wishing to leave prostitution. It was for Parliament, not the court, to devise any replacement filtering scheme.
4. Ground 3 failed. Article 14 was engaged because the neutral rule had a disproportionate effect in relation to soliciting convictions. However, the rule had to be assessed in its general operation. The evidence showed that men were disproportionately more likely to have criminal records, recordable convictions and multiple convictions. The rule pursued the legitimate aims of protecting vulnerable people and ensuring integrity in relevant occupations, and was proportionate.
5. The trafficking and anonymity arguments failed. Under Articles 2 to 4 of Directive 2011/36/EU, “penalties” meant punishment imposed following conviction, not later adverse consequences of conviction. Section 45 of the Modern Slavery Act 2015 provided a relevant defence. A soliciting conviction did not itself disclose that the offender was a trafficking victim, and no domestic or binding international right to anonymity had been established.
6. Recording and retention of conviction data caused only a limited Article 8 interference and were justified in the public interest, particularly because section 1 of the 1959 Act increased the maximum penalty for subsequent convictions. The remaining grounds were unarguable, otiose, hypothetical or outside the proper constitutional role of the court. The claim therefore succeeded only on ground 1, with the parties invited to agree the order.

The judgment records that William Davis J granted permission on grounds 1, 3 and 4, refused permission on other grounds, and later refused a stay pending appeals in R (on the application of P and others) v Secretary of State for the Home Department [2017] EWCA Civ 321 and re Gallagher’s Application for Judicial Review [2016] NICA 42. This court granted permission to amend the grounds and determined the judicial review claim.