Criminal records, enhanced criminal records certificates and disclosure of spent convictions: impact of ECHR, Article 8

Published date01 December 2014
Date01 December 2014
Subject MatterSupreme Court
Supreme Court
Criminal records, enhanced criminal records certificates and disclosure of spent
convictions: impact of ECHR, Article 8: R (on the application of T) vChief Constable
of Greater Manchester [2014] UKSC 35
Criminal records, spent convictions, enhanced criminal records certificates, cautions, reprimands and warnings,
ECHR Article 8
In 2002, T, who at the time was aged 11 years, admitted guilt in respect of the theft of two bicycles and was
given two warnings (akin to adult cautions) by the police. In 2008, T applied to a football club for part- time
employment. As part of the application T was required to obtain an enhanced criminal records certificate
(ECRC). The ECRC disclosed the warnings but, with the assistance of T’s MP, the police agreed to ‘step down’
the warnings under their policy in operation at the time, meaning that, whilst the warnings would remain on
police records, they would not be automatically disclosed on certificates. Accordingly, the matter was resolved.
In 2010, T applied for a sports studies course which involved contact with children, and again he was
required to obtain an ECRC. In the interim and unbeknownstto T the police policy of stepping down con-
victions had ended (see Chief Constable of HumbersidePolice vInformation Commissioner (Secretary of
State for the Home Department intervening) [2009] EWCA Civ 1079, [2010] 1 WLR 1136). As a result
the ECRC again disclosedthe warnings that had been given to T in accordance with the requirementsof ss
113A and 113B of the Police Act1997 (the 1997 Act) (as amended) in conjunction with the Rehabilitation
of Offenders Act 1974 (the 1974 Act) (as amended). As a result the college warned T that his position on
the course was at risk and only allowed him to enrol following representations from his solicitor.
In 2001, JB, who at the time was aged 41 years, accepted a caution for theft of a packet of false finger-
nails from a shop. In 2009, JB undertook a Job Centre training course with a view to gaining employment
in the care sector. The course provider asked JB to obtain an ECRC and, following disclosure of the cau-
tion, she was informed that the course provider was not able to put her forward for employment.
T and JB brought proceedings arguing that the inclusion of their cautions on the ECRCs violated their
rights underArticle 8 of the EuropeanConvention on Human Rights(ECHR). T further arguedthat the obli-
gationon him to disclose the warningsgiven to him also violated thesame right. T’s claim for judicialreview
was dismissedwhilst a judge refused an application for judicial review by JB. The Court ofAppeal upheld
appeals by T and JB (R (on the application of T) vChief Constable of Greater Manchester [2013] 1 WLR
2515) againstthe dismissal of T’s claim and refusal of JB’s application for judicial review. The court held,
pursuantto s. 4 of the Human Rights Act 1998,that the requirement to discloseon ECRCs all convictionsand
cautions heldon central records under Part V of the 1997 Actwas incompatible with ECHR, Article8. The
courtfurther held, in relation to T, thatthe Rehabilitation of OffendersAct 1974 (Exceptions)Order 1975 (SI
1975 No. 1023) wasincompatible with Article 8 andultra vires the 1974 Act (R ( on the application of T) v
Chief Constable of Manchester [2013] EWCA Civ 25,[2013] 1 WLR 2515 at 2543).
In respect of both decisions the Court of Appeal provided that its declarations should not take effect
pending applications by the relevant Secretaries of State to the Supreme Court. The Secretary of State for
the Home Department and the Secretary of State for Justice both appealed against the ruling of the Court
The Journal of Criminal Law
2014, Vol. 78(6) 463–466
ªThe Author(s) 2014
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DOI: 10.1177/0022018314557417

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