QSA & Ors, R (on the application of) v Secretary of State for the Home Department & Anor

Where a statutory disclosure scheme requires disclosure of all previous convictions recorded on central records, it is incompatible with Article 8 ECHR to the extent that the requirement applies where a person has more than one conviction. A statutory exception relating to protected convictions is likewise incompatible where it excludes persons with more than one conviction. Declaratory relief may be stayed pending an expedited appeal. In assessing costs, the court may make an issues-based order reflecting partial success, including the relative time and resources devoted to unsuccessful issues.

The judgment concerned consequential matters following the court’s earlier judgment, cited as [2016] EWCA Civ 29. The claimants had succeeded on Ground 1, concerning the compatibility with Article 8 ECHR of the disclosure scheme under Part V of the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. Grounds 3 and 4 had been dismissed, and permission had been refused on Grounds 2, 5 and 7.

The court considered the form and timing of declaratory relief, applications for permission to appeal, a possible certificate for joinder with appeals concerning related issues, and costs.

1. The court declared that Part V of the Police Act 1997 was incompatible with Article 8 ECHR insofar as it required disclosure of all previous convictions recorded on central records on certificates where there was more than one conviction.

2. The court declared that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 could not be read or given effect compatibly with Article 8 insofar as it excluded from the definition of a person with a protected conviction a person with more than one conviction.

3. The declarations were stayed pending judgment on any appeal or further order, conditional on the defendants prosecuting their appeal expeditiously. The court refused to except the claimants from the stay because that would not be correct in principle and appeared impracticable.

4. Permission to appeal was refused to the claimants because their proposed grounds had no merit and there were no other compelling reasons. Permission was granted to the defendants on Ground 1. The court had accepted that it was bound by R (P & Others) v Secretary of State for the Home Department [2017] EWCA Civ 321, which had concluded that the statutory scheme under sections 113A and 113B of the Police Act 1997 was not in accordance with the law.

5. The court refused a certificate under section 12 of the Administration of Justice Act 1969 to join the appeal with the appeals in P and Re Gallagher’s Application for Judicial review [2016] NICA 42. The defendants’ appeal was to proceed in the Court of Appeal.

6. Although the claimants succeeded on one ground and failed on five, the defendants were ordered to pay 33 per cent of the claimants’ costs. The court applied the issues-based approach in CPR 44.2(4)(b), taking account of the resources devoted to the unsuccessful grounds.

The judgment records the following procedural history:

• Earlier judgment: the claim for judicial review was allowed on Ground 1, dismissed on Grounds 3 and 4, and permission was refused on Grounds 2, 5 and 7, in the judgment cited as [2016] EWCA Civ 29.
• High Court (Administrative Court): declarations were made, their effect was stayed pending appeal, permission to appeal was granted to the defendants on Ground 1, and the defendants were ordered to pay 33 per cent of the claimants’ costs.