R P v The Secretary of State for the Home Department and Another
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Lord Justice Beatson,Lady Justice Thirlwall |
| Judgment Date | 03 May 2017 |
| Neutral Citation | [2017] EWCA Civ 321 |
| Docket Number | Appeal Nos: C1/2014/4359, C1/2015/2862, |
| Court | Court of Appeal (Civil Division) |
| Date | 03 May 2017 |
[2017] EWCA Civ 321
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lord Justice Beatson
Lady Justice Thirlwall
Appeal Nos: C1/2014/4359, C1/2015/2862,
C1/2016/1149, C1/2016/1379
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Eadie QC, Kate GallafentQC and Naina Patel (instructed by Government Legal Department, London) for the Secretary of State for the Home Department and Secretary of State for Justice
Hugh Southey QC and Nick Armstrong (instructed by Liberty) for P
Tim Owen QC and Quincy Whitaker (instructed by Hodge, Jones & Allen, London) for G
Alex Offer (instructed by Minton Morrill, Leeds) for W
Anne Studd QC and Robert Talalay (instructed by Weightmans, London) for the Chief Constable of Surrey Police
Al Mustakim (instructed by Capital Solicitors, London) for Magdalena Krol
Alison Hewitt (instructed by Directorate of Legal Services, New Scotland Yard) for the Commissioner of Police for the Metropolis
Hearing dates: 21–23 February 2017
Judgment Approved
The issue in these linked appeals concerns the interface of two important principles of social policy. The first focuses on the rehabilitation of offenders, and is aimed at allowing those who have come into conflict with the criminal law to be able, in appropriate circumstances, to put their pasts behind them and conduct their lives without further reference to what they did years, and in some cases very many years, previously. Thus, certain convictions can be 'spent' after the lapse of a specified period of time and, thereafter, for most purposes, do not need to be disclosed. The second is the requirement that the public be kept safe from those who, by reason of their past behaviour (extending beyond convictions), might remain a risk. To achieve this second aim, for potential employees seeking certain types of employment (particularly involving contact with children or other vulnerable people but extending to other sensitive areas), employers are required to obtain a certificate which identifies prior convictions, cautions and reprimands, including those that are spent, and may go further, providing other details which the police consider impacts on risk.
The effect of the disclosure of details of prior misconduct (whether or not it has led to a conviction for a criminal offence) undeniably affects the employability of those in respect of whom material has been disclosed. As a result, not only have there been challenges to the statutory scheme in relation to disclosure of convictions, but in addition, challenges have been made to the disclosure (and the retention) in individual cases by the police of cautions, reprimands and other material.
While consideration was being given by the executive to the reach of the original disclosure scheme (in particular, as a consequence of the reports of Mrs Sunita Mason, the government's Independent Advisor for Criminality Information Management, which date from 2010 and 2011), it was challenged as incompatible with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"). In circumstances discussed in detail below, in R (T) v Chief Constable of Greater Manchester Police and others [2013] EWCA Civ 25; [2013] 1 WLR 2515 (" T v CCGMP"), the Court of Appeal agreed with the challenge and made a declaration of incompatibility under s. 4 of the Human Rights Act 1998. Thereafter, as a result of the review which had taken place, and after an appeal was mounted to the Supreme Court so that it could be argued that the original scheme did, in fact, comply with UK obligations under Article 8, the scheme was revised. That appeal failed: see [2014] UKSC 35; [2015] AC 49. Although the revised scheme was before the Supreme Court, no opinion was expressed upon it. These cases now challenge that revised scheme.
The legislation which deals with disclosure is contained within the Police Act 1997 ("the 1997 Act") the Rehabilitation of Offenders Act 1974 as amended by the Criminal Justice and Immigration Act 2008 ("the 1974 Act as amended"). Following the decision, the revised scheme for the disclosure of criminal records was brought into effect by secondary legislation passed by affirmative resolution of both Houses. It is set out in the Police Act 1997 (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 ( SI 2013/1200) ("the 1997 Act Amendment Order"); and the Rehabilitation of Offenders Act (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 ( SI 2013/1198) ("the 1975 Order Amendment Order 2013").
Overview
The 1974 Act, as amended, introduced a scheme whereby convictions and cautions (including reprimands and warnings) for criminal offences do not have to be disclosed in answer to questions insofar as such convictions and cautions are 'spent'. That is to say, depending on the age of the offender at the time of conviction and the type of sentence imposed (initially being a custodial sentence of 30 months or less, but now, by reference to s. 139(2) of Legal Aid, Sentencing and Punishment of Offenders Act 2012, a custodial sentence of four years or less), a specified period of time has elapsed. In those circumstances, a person with a spent conviction is exempted from liability for failing to disclose such matters in circumstances when he would otherwise have been obliged to do so. Cautions (including reprimands and warnings) are spent as soon as they are administered: see para. 1 of Schedule 2 of the 1974 Act as amended.
The protection provided by the 1974 Act, as amended, is subject to the 1975 Order (made pursuant to s. 4(4) of the 1974 Act) which removes the protection from non-disclosure in specified circumstances. In particular, by article 3 of the Order, this protection is removed in relation to questions asked in order to assess suitability for employment in the various positions listed in Schedule 1 and, by article 4, in relation to applications for jobs, among others, working with children and vulnerable adults.
Sitting alongside the 1974 Act, Part V of the 1997 Act created a scheme for disclosure of criminal records held by the police, whereby the police are required to provide information for the assessment of the suitability of a person for employment, or engagement in particular types of positions of trust, sensitivity, or those which involve contact with children. Thus, quite apart from the obligation on the person affected to disclose spent convictions when applying for certain positions, there is another mechanism whereby this information will be disclosed.
Thus, under the 1997 Act, the Disclosure and Barring 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 relevant to suitability for engagement in specified sensitive activities, and largely tracks the 1975 Order, it being defined (by s. 113A(6) of the 1997 Act) as:
"… 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 …"
An ECRC must include information which the relevant police force reasonably believes to be relevant to the enquiry made and ought to be included ('soft intelligence'); this is in addition to matters formally included in police records. Like a CRC, the DBS must supply an ECRC on an application that is countersigned by a registered person, stating that the certificate is required for the purposes of an exempted question, asked for a prescribed purpose. This is prescribed under Regulation 5A of the Police Act 1997 (Criminal Records) Regulations 2002 (SI 2002/233), setting out a list that overlaps significantly with 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.
Both in relation to a CRC and an ECRC, s. 117 of the 1997 Act allows an applicant to apply to the DBS for an amended certificate on the ground that it is inaccurate. The differences in approach between a CRC and an ECRC are that for the latter, in addition to there being a requirement to include 'soft intelligence', pursuant to s. 117A of the 1997 Act (added by s. 82(5) of the Protection of Freedoms Act 2012), there is a right of challenge to the independent monitor (who then seeks a review by the relevant chief officer of police) in relation to the inclusion of information on the grounds that it is not relevant for the purpose described, or ought not to be included in the certificate. Guidance to the chief officer can...
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