RD, R (On the Application Of) v Secretary of State for Justice & Ors

For Article 8, a statutory disclosure rule is “in accordance with the law” when it has a domestic legal basis, is accessible and foreseeable, and leaves no uncontrolled discretion. A legislature may use pre-defined categories, with proportionality assessed by reference to the category rather than the impact on an individual case. Requiring applicants for police constable positions to disclose all convictions and cautions, including childhood reprimands, was rationally connected to police integrity, public confidence and the proper conduct of criminal proceedings. It struck a fair balance, provided that disclosure is not treated as automatic disqualification and its use is governed by a lawful vetting policy.

RD received a reprimand at the age of 13 for minor theft. Her application to become a police support officer was rejected because of the reprimand, although the parties accepted that rejection was unlawful. The Divisional Court held that the statutory disclosure regime applicable to police constables and cadets breached Article 8 and declared the Rehabilitation of Offenders 1974 (Exceptions) Order 1975 incompatible with Article 8 to that extent: [2017] EWHC 2586 (Admin).

The Secretaries of State appealed. The appeal concerned only whether legislation requiring a would-be police constable to disclose any childhood reprimand was “in accordance with the law” and proportionate under Article 8. Retention and the use of disclosed information were not in issue.

Appeal allowed. Males LJ gave the leading judgment, with Stuart-Smith LJ and Underhill LJ agreeing. The declaration made by the Divisional Court was set aside.

1. Legality. The Article 8(2) requirement that an interference be “in accordance with the law” requires a domestic legal basis, accessibility and foreseeability. Any discretion must be sufficiently constrained. The disclosure regime was wholly statutory, including regulations made under the affirmative resolution procedure. Its application to police constable applicants was ultimately clear and involved no unpredictable discretion. The defects identified in MM and T concerned earlier or materially different regimes and did not establish that the present scheme failed the legality requirement.
2. Pre-defined categories. It was legitimate to legislate by reference to a pre-defined category of applicants for the office of police constable. The proportionality of the category itself had to be assessed, rather than the effect of the rule on RD individually. The Secretary of State was entitled to a margin of judgment.
3. Proportionality. Police integrity and public confidence were objectives of fundamental importance. Requiring full disclosure was rationally connected to them, since the police should know of matters potentially relevant to recruitment and to the use of officers as witnesses. Alternative distinctions based on age, seriousness or the protected-caution regime would not provide the same assurance and could be arbitrary or impracticable.
4. Disclosure and use. The decision concerned disclosure only. It did not make a childhood reprimand an automatic bar to appointment. A lawful policy governing use of the information and fair consideration of all the circumstances were essential. The lawfulness of the 2017 Vetting Code was not decided. An apparently suitable applicant rejected summarily because of a minor childhood reprimand would be highly likely to have a separate challenge to the use of the information.

1. Court of Appeal (Civil Division) allowed the appeal and set aside the declaration: [2020] EWCA Civ 1346.
2. High Court, Queen’s Bench Division, Administrative Court held that the rejection and the applicable vetting policy were unlawful and declared the statutory disclosure regime incompatible with Article 8 to the stated extent: [2017] EWHC 2586 (Admin).