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

A challenge to the continued criminalisation of conduct by people who stopped offending long ago may be academic or hypothetical. A statistical disparity between female and male defendants does not establish gender discrimination where it reflects different offending rates rather than different treatment. Statistical evidence becomes probative when it shows differential impact, as illustrated by DH v Czech Republic (2008) 47 EHRR 3.

Retention of conviction data engages Article 8. A policy retaining old convictions until the offender’s 100th birthday was clearly arguable as unnecessary and disproportionate, so permission had to be granted for a merits hearing. Article 4’s trafficking-related non-penalisation safeguards do not create blanket immunity, and retention was not shown to be a penalty.

Three women convicted in the 1980s or 1990s of repeated offences under the Street Offences Act 1959, section 1, challenged the continuing criminalisation of soliciting and the recording and retention of their convictions. They relied on Articles 4, 8 and 14 of the ECHR.

The Divisional Court, in [2018] EWHC 407 (Admin), refused permission on the criminalisation and recording or retention grounds, although the claimants succeeded on the multiple convictions rule. The respondents’ appeal on that issue was withdrawn after a related Supreme Court decision. The remaining appeal concerned gender discrimination, Article 4, and Article 8. The central issue was whether the challenges were arguable and should proceed to substantive judicial review.

The court allowed the appeal in part. It dismissed the criminalisation challenge and the Article 14 and Article 4 challenges to retention. It allowed the Article 8 retention challenge, granted permission for judicial review, and remitted it to a fresh Divisional Court.

1. Criminalisation. The claimants had stopped offending many years earlier. Their challenge to the continued existence of the offence was therefore academic or hypothetical. Any challenge to their historic convictions also arose under a materially different statutory regime and was too late.
2. Article 14. The fact that 98–99% of defendants convicted under section 1 of the Street Offences Act 1959 were women did not establish gender discrimination. The relevant comparator was men committing the same offence, and there was no evidence that men were treated differently. DH v Czech Republic (2008) 47 EHRR 3 was distinguishable because its statistics evidenced differential treatment and racial segregation.
3. Article 8. Retention of conviction data engages Article 8. In light of S and Marper v United Kingdom (2009) 48 EHRR 50 and the Strasbourg decision in Catt v United Kingdom (2019) 69 EHRR 7, it was clearly arguable that retaining these convictions until the offender’s 100th birthday was unnecessary and disproportionate. The technical objection that the wrong defendants had been sued was not treated as decisive. The issue required a merits hearing with the police represented and able to justify the policy.
4. Article 4. Article 26 of the Trafficking Convention and Article 8 of Directive 2011/36/EU require the possibility of non-prosecution or non-imposition of penalties where trafficking victims were compelled to offend, but do not create blanket immunity. Following R v M(L) [2010] EWCA Crim 2327, retention of a conviction record was very doubtful to be a penalty. R v L [2013] EWCA Crim 991 supported that conclusion because a conditional discharge was not itself a penalty.

Lady Justice King agreed with both judgments. Hickinbottom LJ agreed with Bean LJ and added that statistics may assist an indirect-discrimination claim only where they evidence differential treatment. The matter was remitted, with any application to add defendants or seek directions to be made within 28 days.

1. Court of Appeal (Civil Division) — In [2020] EWCA Civ 130, the appeal was allowed in part. The criminalisation, Article 14 and Article 4 grounds were dismissed. Permission was granted on the Article 8 retention ground and that issue was remitted to a fresh Divisional Court.
2. Divisional Court — In [2018] EWHC 407 (Admin), the claimants succeeded on the multiple convictions rule but were refused permission on the criminalisation and recording or retention grounds.