R (T) v Chief Constable of Greater Manchester Police and Others (Liberty and another intervening)
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls |
| Judgment Date | 29 January 2013 |
| Neutral Citation | [2013] EWCA Civ 25 |
| Docket Number | Case No: C1/2012/0520, C1/2011/1660 & C1/2011/1678 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 January 2013 |
[2013] EWCA Civ 25
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION, ADMINSTRATIVE COURT
MR JUSTICE KENNETH PARKER
CO74822011
HIS HONOUR JUDGE GOSNELL
CO12942011
HIS HONOUR JUDGE GOSNELL
CO11802011
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Richards
and
Lord Justice Davis
Case No: C1/2012/0520, C1/2011/1660 & C1/2011/1678
Mr Hugh Southey QC and Mr Nick Armstrong (instructed by Stephensons Solicitors LLP) for the Appellant
Mr Ian Skelt (instructed by The Greater Manchester Police) for the First Respondent
Mr Jason Coppel (instructed by Treasury Solicitors) for the Second and Third Respondents
Mr Timothy Pitt-Payne QC (instructed by Liberty) for the First Intervener
Ms Caoilfhionn Gallagher (instructed by Equality and Human Rights Commission) for the Second Intervener
Mr Stephen Cragg (instructed by Howells Solicitors LLP) for the Appellant
Mr Jason Coppel (instructed by Treasury Solicitors) for the Respondent
Mr Stephen Cragg (instructed by Howells Solicitors LLP) for the Appellant
Mr Jason Coppel (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 26 & 27 November 2012
this is the judgment of the court.
In these proceedings, the claimants contend that in certain respects the provisions of the Police Act 1997 ("the 1997 Act"), the Rehabilitation of Offenders Act 1974 ("the ROA") and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 ("the ROA Order"), which was made pursuant to the ROA, are incompatible with article 8 of the European Convention on Human Rights ("the ECHR").
The relevant legislation
The ROA
The purpose of the ROA is explained in the long title:
"An Act to rehabilitate offenders who have not been reconvicted of any serious offence for periods of years, to penalise the unauthorised disclosure of their previous convictions, to amend the law of defamation, and for purposes connected therewith."
The ROA provides a scheme whereby criminal convictions, cautions, warnings and reprimands in respect of certain offences are deemed to be "spent" after specified periods of time. Thereafter, the person convicted or cautioned in respect of such offences should be treated as if he had never committed the offence in question and need not make reference to the conviction or caution in answering any question which might otherwise require its disclosure.
There are two forms of caution. One is a simple caution, which is a non-statutory disposal for adult offenders and is administered by the police. The other is a conditional caution issued pursuant to section 22 of the Criminal Justice Act 2003. This requires the involvement of a prosecutor. For offenders under the age of 18, reprimands and warnings are available instead of cautions (pursuant to section 65 of the Crime and Disorder Act 1998). The provisions of the ROA relating to cautions apply equally to warnings and reprimands. Save where the context otherwise requires, we shall use the term "caution" to apply to each of these disposals.
As regards cautions, para 3 of Schedule 2 of the ROA provides so far as material:
"(3) Where a question seeking information with respect to a person's previous cautions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority –
(a) the question shall be treated as not relating to spent cautions or to any ancillary circumstances, and the answer may be framed accordingly; and
(b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent caution or any ancillary circumstances in his answer to the question.
(4) Any obligation imposed on any person by any rule of law or by the provisions of any agreement or arrangement to disclose any matters to any other person shall not extend to requiring him to disclose a spent caution or any ancillary circumstances (whether the caution is his own or another's).
(5) A caution which has become spent or any ancillary circumstances, or any failure to disclose such a caution or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment."
Section 5 provides that sentences that are excluded from rehabilitation under the Act include a sentence of imprisonment, youth custody or detention in a young offender institution for a term exceeding 30 months. This will be increased to 48 months when section 139(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 Act comes into force. But no change has been made to the rule that simple cautions, warnings and reprimands are deemed to be spent as soon as they are administered (para 1 of Schedule 2 of the ROA).
These provisions of the ROA are, however, subject to the ROA Order, which removes the protection otherwise given by the ROA in specified circumstances. In particular, article 3 of the ROA Order excludes the effect of para 3(3) of Schedule 2 of the ROA in the context of questions asked in order to assess suitability for employment in the various positions listed in the provisions of Schedule 1 to the Order; and article 4 excludes the effect of para 3(5) of Schedule 2 in relation inter alia to applications for jobs working with children and vulnerable adults.
Section 113B of the Act provides, so far as material:
"The Secretary of State must issue an enhanced criminal record certificate to any individual who –
(a) makes an application, and
(b) pays in the prescribed manner any prescribed fee.
…
(3) An enhanced criminal record certificate is a certificate which –
(a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or
(b) states that there is no such matter or information.
(4) Before issuing an enhanced criminal record certificate the Secretary of State must request the chief officer of every relevant police force to provide any information which –
(a) the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and
(b) in the chief officer's opinion, ought to be included in the certificate.
…
(9) In this section –
"central records", "exempted question", and "relevant matter" have the same meaning as in section 113A."
Although these proceedings are concerned with enhanced criminal record certificates ("ECRCs"), reference will also be made later in this judgment to criminal record certificates ("CRCs") which are dealt with in section 113A of the Act.
The definitions referred to in section 113B(9), which appear in section 113A(6), provide as follows:
"central records" means such records of convictions and cautions held for the use of police forces generally as may be prescribed;
"exempted question" means a question which –
(a) so far as it applies to convictions, is a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by an order of the Secretary of State under section 4(4) of that Act; and
(b) so far as it applies to cautions, is a question to which paragraph 3( 3) or (4) of Schedule 2 to that Act has been excluded by an order of the Secretary of State under paragraph 4 of that Schedule
"relevant matter" means –
(a) a conviction within the meaning of the Rehabilitation of Offenders Act 1974, including a spent conviction, and
(b) a caution, including a caution that is spent for the purposes of Schedule 2 to that Act."
The Secretary of State for the Home Department ("SSHD") is empowered by section 113A(7) to amend the statutory definitions of "central records" and "relevant matter". This may be done by order laid before Parliament under the affirmative resolution procedure (section 113A(8)).
The Criminal Records Review
On 22 October 2010, the SSHD established the Criminal Records Review ("the Review") whose terms of reference were summarised as follows:
"The Criminal Records Review will examine whether the criminal records regime strikes the right balance between respecting civil liberties and protecting the public. It is expected to make proposals to scale back the use of systems involving criminal records to common sense levels."
The Review has been conducted by Mrs Sunita Mason, the Government's Independent Advisor for Criminality Information Management. She first provided a report dated March 2010. Subsequently, for the purposes of the Review, she produced her Report on Phase One (11 February 2011) and her Report on Phase Two (6 December 2011). A number of her recommendations for improving the system for criminal records checks have already been implemented by provisions of the Protection of Freedoms Act 2012.
One of the recommendations made by Mrs...
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