In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland)

For article 8 purposes, a measure is in accordance with the law when it has a domestic legal basis and is accessible and foreseeable. Safeguards must constrain discretionary powers whose application would otherwise depend on official choice. An exact rule requiring disclosure in every case within defined categories does not fail that test merely because its categories are broad or exclude individual review.

Category-based criminal-record disclosure can be proportionate despite individual hard cases. The court assesses the justification and boundaries of the general measure, allowing the legislature an appropriate margin of judgment. However, automatic disclosure based solely on multiple convictions was disproportionate because it did not rationally identify a propensity to offend. Mandatory disclosure of youth warnings and reprimands was also wrong in principle because those disposals were instructive and rehabilitative rather than penal.

These conjoined appeals concerned four people whose spent convictions, caution or reprimands were, or could be, disclosed when they sought sensitive employment. P and Lorraine Gallagher were affected by the multiple-conviction rule. G was affected by the mandatory disclosure of youth reprimands. W faced prospective disclosure of an old conviction for assault occasioning actual bodily harm.

The Court of Appeal in Northern Ireland upheld Ms Gallagher's challenge in In re Gallagher's Application [2016] NICA 42. The Court of Appeal of England and Wales upheld the challenges of P and G and allowed W's appeal in R (P), R (G) and R (W) [2017] EWCA Civ 321; [2018] 1 WLR 3281.

The central questions were whether the amended disclosure schemes were in accordance with the law under article 8 of the European Convention on Human Rights, whether category-based disclosure was proportionate, and whether the particular multiple-conviction, youth-reprimand and serious-offence rules were lawful.

1. Disposition. By a majority, the court dismissed the Secretary of State's appeals in P's and G's cases, allowed P's cross-appeal to the extent of adding a declaration of incompatibility, allowed W's appeal, and allowed the appeal in Ms Gallagher's case in part by narrowing the declarations. Lord Sumption delivered the leading judgment, with which Lord Carnwath and Lord Hughes agreed. Lady Hale, with whom Lord Carnwath agreed, concurred in the proposed disposal. Lord Kerr dissented.

2. The requirement that an interference be in accordance with the law concerns its domestic legal basis and the qualities of accessibility and foreseeability. Legal safeguards are required where a measure confers a discretion whose scope or exercise would otherwise depend on official will. The amended rules under the Rehabilitation of Offenders Act 1974 and Police Act 1997 were highly prescriptive, defined the disclosable categories exactly and made disclosure mandatory. Their breadth and lack of individual review did not deprive them of the quality of law. Any residual police judgment concerning enhanced certificates was constrained by statutory guidance.

3. A state may proportionately legislate through predefined categories even though individual hard cases result. The relevant inquiry concerns the justification and boundaries of the general measure, rather than whether its application is proportionate to every individual. Category-based disclosure was justified because employers were best placed to assess suitability for particular sensitive work; candidates needed certainty about their own disclosure obligations; the parallel statutory regimes required alignment; and millions of applications made universal individual review impracticable. The general categories lay within the legislature's margin of judgment, subject to two exceptions.

4. The multiple-conviction rule was disproportionate. It required disclosure without regard to the nature or similarity of the offences, the number of occasions or the intervals between them. It was therefore incapable of reliably indicating a propensity to offend. Mandatory disclosure of warnings and reprimands imposed on young offenders was also wrong in principle. Those disposals were preventive, rehabilitative and welfare-promoting, required no consent and did not determine a criminal charge. Their disclosure contradicted their purpose. The court did not determine the position of the later youth-caution regime.

5. It was proportionate to include assault occasioning actual bodily harm among serious offences requiring disclosure without a temporal limit. The validity of that category depended on its general justification, not its severe impact in W's particular case. In P's case, the court declined to quash the subordinate multiple-conviction rule because that would have created a discrepancy between personal disclosure duties and certificates issued under the Police Act 1997. A declaration of incompatibility was added instead. Lord Kerr would have held that a disclosure scheme must contain safeguards permitting adequate assessment of proportionality and would have upheld the broader conclusions of the courts below.

1. United Kingdom Supreme Court: In the present conjoined judgment, the court dismissed the appeals concerning P and G, allowed W's appeal, allowed P's cross-appeal to the limited extent of adding a declaration, and varied the relief in Ms Gallagher's case.
2. Court of Appeal in Northern Ireland: In In re Gallagher's Application [2016] NICA 42, the court dismissed the Department's appeal from Treacy J's orders.
3. Court of Appeal of England and Wales: In R (P), R (G) and R (W) [2017] EWCA Civ 321; [2018] 1 WLR 3281, the court upheld P's and G's challenges, allowed W's appeal and dismissed P's cross-appeal concerning the subordinate multiple-conviction rule.
4. High Court in England and Wales: The Divisional Court granted P declaratory relief in R (P and A) v Secretary of State for Justice [2016] EWHC 89 (Admin); [2016] 1 WLR 2009. Blake J granted G a declaration of incompatibility. Simon J dismissed W's application.
5. High Court in Northern Ireland: Treacy J allowed Ms Gallagher's judicial-review application and made declarations concerning necessity and legality under article 8.