R (on the applications of P and A) v Secretary of State for Justice and Another Chief Constable of Thames Valley Police (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Mrs Justice Carr |
| Judgment Date | 22 January 2016 |
| Neutral Citation | [2016] EWHC 89 (Admin) |
| Docket Number | Case No: CO/540/2015 & CO/5774/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 January 2016 |
[2016] EWHC 89 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
and
Mrs Justice Carr
Case No: CO/540/2015 & CO/5774/2014
and
Hugh Southey QC and Nick Armstrong (instructed by Liberty and Stephensons Solicitors LLP) for the Claimants
Kate Gallafent QC and Naina Patel (instructed by the Government Legal Department) for the Defendants
The Interested Party did not appear and was not represented
Hearing date: 8 December 2015.
(A) Introduction
We have before us two applications for judicial review in which the respective Claimants (Ms P and Mr A) claim: (1) a declaration that the scheme under Part V of the Police Act 1997 ("the 1997 Act"), as amended by the Police Act (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 ( SI 2013/1200), is incompatible with Article 8 of the European Convention on Human Rights and Fundamental Freedoms ("ECHR"), in so far as it requires the disclosure of all convictions when there is more than one conviction on the subject's record; and (2) a declaration that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 ( SI 1975/1023)) ("the 1975 Order"), as amended by the Rehabilitation of Offenders Act (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 ( SI 2013/1198) is ultra vires as being incompatible with the same article of the ECHR.
A claim originally made by Ms P that the provisions in question also infringe Article 14 in conjunction with Article 8 is no longer pursued.
The 2013 Orders were made (as their titles indicate) in amendment of earlier statutory provisions. Those amendments were made, in part, as a result of litigation then proceeding through the courts in a case that ultimately reached the Supreme Court and ended in judgments of that court delivered on 18 June 2014 and reported as R (T) v Chief Constable of Greater Manchester Police & ors. [2014] UKSC 35. By its 2014 judgment the Supreme Court held that the unamended provisions were incompatible with Article 8 of the ECHR. In the present cases, the Claimants contend that the amended provisions are also incompatible with the ECHR for very similar reasons. The Defendants submit that the amendments made now render the statutory scheme compatible with that Convention.
(B) The Revised Statutory Scheme and its Background
The Rehabilitation of Offenders Act 1974 introduced a process whereby convictions and cautions for criminal offences do not have to be disclosed in answer to questions, for example by employers or prospective employers, in so far as such convictions and cautions are "spent" and a person is exempted from liability for failing to disclose such matters in circumstances when otherwise he would be obliged to do so. However, pursuant to section 4(4) of the 1974 Act, the predecessor of the Secretary of State for Justice made the 1975 Order providing for certain exceptions to this relief from any requirement to disclose a criminal record in the case of duties under, or for assessment of, suitability for admission to, certain specified professions, offices and employments. These include work with children or vulnerable adults: Article 3(1)(a), (aa), (e) and (f) of, and Schedule 1 to, the 1975 Order and cases involving the grant of approvals and permissions by the Financial Conduct Authority (Article 3(1)(a) and (g) and Schedule 1). Those exceptions are the ones most directly relevant to the cases before us; there are others.
The uncontroversial object of the legislation, primary and subordinate, is to facilitate employment of former offenders, while affording protection to the vulnerable and recognition of the special requirements of certain sensitive professions, employments and activities.
Until 29 May 2013, the effect of the 1975 Order was that a person was not exempted from disclosure of any spent conviction or caution where the exceptions provided for by the Order applied. Under the revised provisions that blanket arrangement has been modified in a manner which I endeavour to explain below.
Part V of the 1997 Act created new machinery for disclosure of criminal records held by the police where they are required to assess suitability of persons for employment or engagement in particular types of positions of trust or sensitivity, including positions involving contact with children.
Under this Act, the Disclosure and Debarring Service ("DBS"), formerly the Criminal Records Bureau, is required to issue a criminal record certificate ("CRC") or an enhanced criminal record certificate ("ECRC") to any person who applies for such a certificate, on an application countersigned by a "registered person". Broadly, registered persons are those entered on a register maintained by the Secretary of State containing the names of those who demonstrate a potential requirement of a need to ask "exempted questions". An "exempted question" is "a question which…so far as it relates to convictions, is a question to which section 4(2)(a) or (b) of the [1974 Act] (effect of rehabilitation) been excluded by an order of the Secretary of State under section 4(4) of that Act": section 113A(6) of the 1997 Act, i.e. a question relevant to suitability for engagement in specified sensitive activities. Thus, the 1997 Act largely "tracks" the 1975 Order.
The significant difference between a CRC and an ECRC is that the latter must include not only matters formally included in police records, but also information which the relevant police force reasonably believes to be relevant to the enquiry made and which ought to be included. Such additional information is apparently known as "soft intelligence": contrast sections 113A(3)(a) and 113B(3)(a) and (4) of the 1997 Act.
The ECRC is also supplied on an application countersigned by a "registered person" who must state that the certificate is required for the purposes of an exempted question asked for a "prescribed purpose". A "prescribed purpose" is, in turn, a purpose prescribed under regulation 5A of the Police Act 1997 (Criminal Records) Regulations 2002 (SI 2002/233). This sets out a list which overlaps, but is not identical to the list in article 3 of the 1975 Order, itemising situations in which the registered person proposes to consider the applicant's suitability for a specified position of trust or sensitivity.
As in the T case, where Lord Wilson said it is convenient to regard both the obligation of a person to disclose a spent conviction or caution under the 1975 Order and the obligation of the DBS to disclose a spent conviction or caution in a ECRC as running in parallel, the same is true in this case under the revised regime. In this judgment, I proceed accordingly, particularly as the arguments of the parties took that course. However, as one enters the details of the decision in T, one has to note that the Supreme Court reached slightly different conclusions with regard to the 1997 Act and the 1975 Order respectively.
Moving swiftly on, however, the old scheme, which foundered in the Court of Appeal and in the Supreme Court in the T case, required disclosure in CRCs and ECRCs of all convictions and cautions, whether current or spent and whatever the nature of the offence or offences to which they pertained. Between the decision in the Court of Appeal and the hearing of the case in the Supreme Court, parallel amendments were made to the scheme under the two 2013 Orders.
The Order under the 1997 Act amended the definition of "relevant matter" in 113A(6) of the Act which now provides as follows:
""relevant matter"… means—
(a) in relation to a person who has one conviction only:
(i) a conviction of an offence within subsection (6D);
(ii) a conviction in respect of which a custodial sentence or a sentence of service detention was imposed; or
(iii) a current conviction.
(b) in relation to any other person, any conviction;
(c) a caution in respect of an offence within subsection 6(D);
(d) a current caution".
The effect is that where there are two or more convictions, they are always disclosable on a CRC or an ECRC. Further, where a conviction is of a specified kind or resulted in a custodial sentence, or is "current" (i.e. for an adult within the last 11 years and for a minor within the last 5 years and 6 months), then it will always be disclosable.
The offences listed in subsection (6D) are extensive, and include murder and offences specified under schedule 15 to the Criminal Justice Act 2003, i.e. more serious offences of violence (including assault occasioning actual bodily harm) and all sexual offences, but not, for example theft or common assault.
The primary feature of this new scheme which "catches" the Claimants in the present case is that where there is more than one conviction all of them are disclosable throughout the subject's lifetime. However, in the case of one of the Claimants (P) one matter is not disclosable; that is, the theft which resulted in a caution alone and no conviction. That flows from the fact that that offence is neither a "subsection (6D) offence" and is not "current".
I should note at this stage that the amendments enacting the scheme in its present form were passed under the affirmative resolution procedure after debate in both Houses of Parliament.
It is clear that in the...
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