R (P) v Secretary of State for Justice

The Supreme Court considered whether the statutory schemes for disclosure of criminal records under the Rehabilitation of Offenders Act 1974 (and the corresponding Northern Ireland Order) and Part V of the Police Act 1997 were "in accordance with the law" and, if so, whether mandatory disclosure in the defined categories was a proportionate interference with Article 8 ECHR. The court applied the established dual test of accessibility and foreseeability and the Strasbourg authorities requiring safeguards against arbitrary interferences (eg Malone, Kruslin, MM). It held that the amended disclosure schemes (following the 2013/2014 reforms) are, in general, "in accordance with the law" and capable of being justified as proportionate legislative choices to protect children and vulnerable adults, while recognising the legislature a margin of judgment in drawing bright-line categories.

• The court nonetheless identified two discrete defects: the multiple-conviction rule (which makes an entire record disclosable simply because there is more than one conviction) is an irrational and disproportionate mechanism for detecting criminal propensity and thus incompatible with Article 8 in the way it operates; and the inclusion of youth warnings/reprimands among matters to be disclosed is a category error undermining the rehabilitative purpose of such disposals.
• Remedies were tailored: the Secretary of State’s appeals were dismissed in part (so far as the multiple-conviction rule and the disclosure of youth reprimands are concerned) and certain declarations of incompatibility were affirmed or varied rather than sweeping invalidation of the whole statutory scheme. The court declined to require an individualised, case-by-case review as a necessary precondition to lawful disclosure schemes.

Background and procedural posture

Four respondents (P, G, W and Lorraine Gallagher) challenged statutory disclosure rules that required spent convictions, cautions or reprimands to be disclosed in particular circumstances (notably where an enhanced criminal record check is required). These appeals came from the Court of Appeal in England and Wales ([2017] EWCA Civ 321) and the Court of Appeal in Northern Ireland ([2016] NICA 42) and raised issues under Article 8 ECHR about the quality of the domestic law authorising disclosure and the proportionality of compulsory disclosure.

Nature of the claims / relief sought

• Applicants sought declarations and judicial review relief that the disclosure regime (Rehabilitation of Offenders Act 1974 and Exceptions Orders; Part V of the Police Act 1997 and its implementing orders) was incompatible with Article 8 ECHR because it lacked necessary safeguards and/or was disproportionate.

Issues framed

1. Whether the disclosure regime was "in accordance with the law" for Article 8(2) purposes (accessibility, foreseeability and adequate safeguards against arbitrariness);
2. If it was in accordance with the law, whether mandatory disclosure as structured was a proportionate and necessary interference with private life;
3. Whether particular features (notably the multiple-conviction rule and the mandatory disclosure of youth reprimands/warnings) were unlawful or disproportionate; and
4. What remedies were appropriate (declarations of incompatibility, quashing or variation of subordinate instruments, or other relief).

Court’s reasoning (concise)

The majority (Lord Sumption, with whom Lord Carnwath and Lord Hughes agreed, and Lady Hale in large part) undertook the Huvig/Kruslin/Malone line of analysis on law quality. They held the amended schemes introduced in 2013/2014 were sufficiently precise, accessible and supported by statutory guidance (and, in Northern Ireland, by the later introduction of an independent review mechanism) to be "in accordance with the law". The court accepted that Parliament may legitimately adopt bright-line, category-based disclosure rules rather than require case-by-case administrative review because of legitimate public-protection and practical considerations.

On proportionality, the majority concluded that the broad category-based approach fell within the legislator’s margin of appreciation. However they identified two exceptions of principle where the scheme was disproportionate or wrongly drawn as a matter of law: (i) the multiple-conviction rule (which indiscriminately renders all convictions disclosable once there is more than one) lacked sufficient connection to the objective of detecting propensity and was disproportionate; and (ii) the treatment of youth warnings/reprimands (preventative/welfare disposals given to children) as equivalent to criminal disposals for disclosure purposes undermined their rehabilitative purpose and was an error of principle. Remedies were framed accordingly: declarations of incompatibility or variation of domestic orders as appropriate, rather than striking down the statutory disclosure regime as a whole.

Wider context: the court emphasised the competing legitimate public interests of offender rehabilitation and safeguarding vulnerable people and explained that, subject to the exceptions found, the legislature’s categorical approach was within its margin of judgment and justified by considerations of certainty and practicability.

The Supreme Court (majority) held that the post-2013/2014 disclosure schemes are, in general, "in accordance with the law" for Article 8 purposes and can be justified as proportionate legislative choices balancing public protection and rehabilitation. However the court found two legal defects: the multiple-conviction rule is an irrational and disproportionate means of identifying propensity and is incompatible with Article 8 insofar as it operates, and the inclusion of youth warnings/reprimands among matters mandatorily disclosable is an error of principle. The court accordingly dismissed or allowed parts of the appeals as necessary to give tailored relief (declarations of incompatibility or variation) rather than invalidating the whole statutory scheme.

Appeals to the United Kingdom Supreme Court from the Court of Appeal (England & Wales) [2017] EWCA Civ 321 and the Court of Appeal in Northern Ireland [2016] NICA 42 (consolidated for determination by the Supreme Court).