R (on the application of T) v Chief Constable of Greater Manchester

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Neuberger,Lord Wilson,Lord Reed,Lord Clarke,Lady Hale
Judgment Date18 June 2014
Neutral Citation[2014] UKSC 35
Date18 June 2014

[2014] UKSC 35

THE SUPREME COURT

Trinity Term

On appeal from: [2013] EWCA Civ 25

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Clarke

Lord Wilson

Lord Reed

R (on the application of T and another)
(Respondents)
and
Secretary of State for the Home Department and another
(Appellants)

Appellants

James Eadie QC Jason Coppel QC

(Instructed by Treasury Solicitors)

Respondent (T)

Hugh Southey QC Nick Armstrong

(Instructed by Stephensons)

Respondent (JB)

Stephen Cragg QC Azeem Suterwalla

(Instructed by Howells LLP)

Interveners (Financial Conduct Authority; Prudential Regulation Authority)

Jenni Richards QC

(Instructed by Financial Conduct Authority and Prudential Regulation Authority)

Intervener (Equality and Human Rights Commission)

Caoilfhionn Gallagher Conor McCarthy

(Instructed by Equality and Human Rights Commission)

Intervener (Liberty)

Timothy Pitt-Payne QC

(Instructed by Liberty)

Heard on 9 and 10 December 2013

Lord Wilson
INTRODUCTION
1

The Rehabilitation of Offenders Act 1974 ("the 1974 Act") provides that, after a period of time, the criminal convictions of a person, say of a man, are in many cases "spent". This means, among other things, that he is not obliged to disclose them in response to a question by, for example, a prospective employer and that the prospective employer is not entitled to make a decision prejudicial to him by reference to them or to any failure on his part to disclose them. The same goes for cautions (which include warnings given to a child: section 65(9) Crime and Disorder Act 1998). Subject to an immaterial exception, cautions are "spent" as soon as they have been given: para 1(1)(b) of Schedule 2 to the 1974 Act, added by paragraph 6 of Schedule 10 to the Criminal Justice and Immigration Act 2008. But the law identifies exceptions to a person's protection from reference to spent convictions and to cautions. In these proceedings the two respondents, T and JB, claim that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). T further claims that the obligation cast upon him to disclose the warnings given to him violated the same right. To the extent that the claims of T and JB are valid, another important question arises in relation to the width of the appropriate remedy.

2

The Secretary of State for the Home Department has responsibility for the Disclosure and Barring Service ("the DBS"), an executive agency charged with the issue of certificates relating to a person's criminal record pursuant to the Police Act 1997 ("the 1997 Act"). The Secretary of State for Justice has responsibility for the working of the 1974 Act. The two Secretaries of State appeal against orders made by the Court of Appeal (Lord Dyson MR, Richards and Davis LJJ) on 29 January 2013: [2013] 1 WLR 2515. It upheld T's appeal against the dismissal of his claim for judicial review and, in his case, declared first, pursuant to section 4 of the Human Rights Act 1998 ("the 1998 Act"), that the provisions of Part V of the 1997 Act were incompatible with article 8 "insofar as they require the disclosure of all convictions and cautions that are recorded on central records on certificates"; and second that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 ( SI 1975 /1023) ("the 1975 Order") was incompatible with article 8 "and ultra vires the 1974 Act". A judge had refused to grant JB permission to apply for judicial review and, in her case, the Court of Appeal allowed her appeal, granted permission, upheld her claim and declared, pursuant to section 4 of the 1998 Act, that the provisions of Part V of the 1997 Act were incompatible with article 8 "for the reasons set out in [its] judgment".

3

In both cases the Court of Appeal provided that its declarations should not take effect pending application by the Secretaries of State to this court for permission to appeal. On granting permission, this court extended the stay until its determination of the appeals. In particular, therefore, the result is that there is no presently effective declaration that the 1975 Order is ultra vires. In these circumstances one would expect the Secretaries of State to have awaited the determination of the current appeals before exercising powers under the 1974 Act to amend the 1975 Order and powers under the 1997 Act to amend that Act itself, with a view to eliminating the incompatibilities and indeed invalidities identified by the Court of Appeal. On 22 May 2013, however, no doubt for reasons which they considered to be good, the Secretaries of State made the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (SI 2013/1198) and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI 2013/1200) with a view to eliminating the identified incompatibilities and invalidities. In paras 13 to 15 below I will, in effect in parenthesis, summarise the effect of the recent orders, which took effect on 29 May 2013. These appeals, however, concern the provisions of the 1975 Order and of the 1997 Act as they stood prior to the amendments wrought by the recent orders and, unless the context otherwise requires, references to the 1975 Order and to the 1997 Act should be understood accordingly. The appeals therefore lose some, but only some, of their practical significance. There would be a piquancy about any conclusion by this court that the 1975 Order and the 1997 Act were not, after all, incompatible with the respondents' rights. But the court must beware of allowing its knowledge of the recent orders to lead it to avoid such a conclusion otherwise than on a principled basis.

FACTS
4

In 2002 the police issued two warnings to T, who was then aged 11, in respect of the theft of two bicycles. Like a caution issued to an adult, a warning to a child can be given only following his admission of guilt. T has no other criminal record. In 2008 a football club, to whom he had applied for part-time employment, required him to obtain an enhanced criminal record certificate ("an ECRC") under section 113B of the 1997 Act (as inserted by section 163 of the Serious Organised Crime and Police Act 2005 and amended by section 97(2) of the Policing and Crime Act 2009 and section 82(1) of the Protection of Freedoms Act 2012). The certificate disclosed the warnings but, following the intervention of T's M.P., the police agreed to apply to the warnings their policy of "stepping down" in some cases. The effect was that, while the warnings remained on police files, they were not automatically to be disclosed on certificates. This seems to have resolved any problem between T and the football club. In 2010, however, T applied for enrolment on a sports studies course, which was to entail his contact with children. The college required him to obtain an ECRC. No doubt T was unaware that in the interim the police had acknowledged that their policy of "stepping down" contravened the 1997 Act: Chief Constable of Humberside Police v Information Comr (Secretary of State for the Home Department intervening) [2009] EWCA Civ 1079, [2010] 1 WLR 1136, at para 3. In the event, therefore, the ECRC issued in relation to T again disclosed the warnings. The college responded that T's place on the course was at risk. It was only as a result of representations by his solicitor that it accepted T for enrolment on the course notwithstanding the warnings.

5

In 2001 the police issued a caution to JB, then aged 41, in respect of the theft from a shop of a packet of false fingernails. She has no other criminal record. In 2009 she completed a training course arranged by the Job Centre for employment in the care sector. The provider of the course asked her to obtain an ECRC, which disclosed the caution. It thereupon told her that it felt unable to put her forward for employment in the care sector.

THE 1974 ACT AND THE 1975 ORDER
6

Section 4(2) and (3)(b) of the 1974 Act applies to such convictions as are treated as spent under the Act; and para 3(3) and (5) of Schedule 2 to it applies analogously to cautions. Broadly summarised, section 4(2) and para 3(3) provide that, where a question is asked of a person about his criminal record, it shall be treated as not extending to them and he is entitled not to disclose them and cannot be liable for failure to do so. Also thus summarised, section 4(3)(b) and para 3(5) provide that a person's spent conviction or his caution, or a failure to disclose it, cannot justify his exclusion or dismissal from a profession or employment or any action prejudicial to him in the course of his employment. But the 1975 Order makes exceptions to these provisions: article 3 of it specifies the exception to section 4(2) and to para 3(3) of the Schedule and article 4 specifies the exception to section 4(3)(b) and to para 3(5). In the light of the Court of Appeal's declaration that the whole order was ultra vires, it is important to note the width of the two articles.

7

Article 3 of the 1975 Order (as amended by article 3 of the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) Order 2001 (SI 2001/1192) and article 4 of the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008 (SI 2008/3259) ("the 2008 Order")) provides that a person's entitlement not to disclose either spent convictions or cautions in answer to questions does not extend to situations in which the questions are asked in order to assess his suitability in any one of 13 specified respects. Six examples are his suitability, at (a) of the article, for admission to certain professions and for entry into certain types of...

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