Article 8 ECHR and the Disclosure of Criminal Records: Time to Reconsider R (on the application of P and A) v (1) Secretary of State for Justice (2) Secretary of State for the Home Department and Chief Constable of Thames Valley Police (Interested Party) [2016] EWHC 89 (Admin) R (on the application of G v (1) Chief Constable of Surrey Police (2) Secretary of State for the Home Department (3) Secretary of State for Justice [2016] EWHC 295 (Admin)
| Author | Emma Piasecki,Gemma Davies |
| DOI | 10.1177/0022018316678968 |
| Published date | 01 December 2016 |
| Date | 01 December 2016 |
| Subject Matter | Court of Appeal |
399
In Murray, the Crown had discharged its burden irrespective of the identified lies of the accused,
and for that reason his subsequent conviction was safe. However, the basis on which the court
considers, from Burge and Pegg, that a Lucas direction would usually be required is unsatisfactory
in its fourth aspect insomuch as if the objective standard and inclusion of the word ‘real’ are unin-
tentional then ambiguity exists; if they were deliberate then they would seem to impose a needlessly
high threshold before the judge would feel bound to give the direction, and that must encroach upon
the fairness of a trial.
Damian Warburton
Article 8 ECHR and the Disclosure of Criminal Records:
Time to Reconsider
R (on the application of P and A) v (1) Secretary of State for
Justice (2) Secretary of State for the Home Department and
Chief Constable of Thames Valley Police (Interested Party)
[2016] EWHC 89 (Admin) R (on the application of G v (1)
Chief Constable of Surrey Police (2) Secretary of State for the
Home Department (3) Secretary of State for Justice [2016]
EWHC 295 (Admin)
Keywords
Criminal records, disclosure, spent cautions, spent convictions, Article 8 ECHR
P and A
P, at the time of the hearing, was a 47-year-old former teacher with two convictions, both for offences
committed 16 years previously at a time when she was suffering from undiagnosed, and therefore
untreated, schizophrenia. The first conviction was for a minor shoplifting offence and the second was
for failing to surrender to the court in relation to the shoplifting charge. Both convictions were sentenced
on the same date by way of conditional discharge. A, at the time of the hearing, was a 51-year-old
finance director with three convictions dating back to when he was 17 and 18. The first conviction was
for theft from a market stall, for which he was fined £30. The second and third relate to the theft of a
motorcycle and driving without insurance, for which he was fined £50 and required to attend at an
attendance centre for 24 hours.
Both P and A were caught by the scheme relating to the disclosure of convictions and cautions
contained in Part V of the Police Act 1997 (‘the 1997 Act’), as amended by the Police Act 1997
(Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI
2013/1200) as they had been convicted of more than one offence.
Both claimants brought applications for judicial review seeking declarations that (1) the scheme
under Part V Police Act 1997 (as amended) remains incompatible with Article 8 ECHR in that it requires
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The Journal of Criminal Law 80(6)
the disclosure of all convictions where there is more than one conviction on a person’s record and (2) the
Rehabilitation of Offenders Act (Exceptions) Order 1975 is ultra vires as being incompatible with
Article 8 ECHR.
Held, granting both claims for judicial review, in addressing whether the disclosure scheme’s
interference with Article 8 rights was ‘in accordance with the law’, the question is whether the statute in
its present form provides the individual with adequate protection against arbitrariness and that there are
adequate safeguards, such as a review mechanism, which enable the proportionality of the interference to
be examined (at [85]). The present rules produce results, including those in the instant cases, which are
arbitrary (at [86]). The scheme...
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