The Queen (on the application of RD) v Secretary of State for Justice

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLord Justice Males,Lord Justice Stuart-Smith,Lord Justice Underhill
Judgment Date20 Oct 2020
Neutral Citation[2020] EWCA Civ 1346
Docket NumberCase No: C1/2018/0064

[2020] EWCA Civ 1346

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Lord Justice Fulford & Mr Justice Green

[2017] EWHC 2586 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Underhill

(VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION)

Lord Justice Males

and

Lord Justice Stuart-Smith

Case No: C1/2018/0064

Between:
The Queen (on the application of RD)
Respondent
and
(1) Secretary of State for Justice
(2) Secretary of State for the Home Department
(3) National Police Chiefs' Council
Appellants

Kate Gallafent QC & Christopher Knight (instructed by the Government Legal Department) for the Secretaries of State

Jason Beer QC & Robert Talalay (instructed by Directorate of Legal Service, Metropolitan Police for the National Police Chiefs' Council

Adam Straw (instructed by Sonn Macmillan Walker) for the Respondent

Hugh Southey QC & Jennifer Twite (instructed by and on behalf of Just for Kids Law as Interveners) by written submissions only

Hearing dates: 7 th & 8 th October 2020

Approved Judgment

Lord Justice Males

Introduction

1

A 13 year old girl, RD, together with three of her friends, steals a sarong worth £20 from Primark. She is arrested and admits the offence. The police decide not to prosecute and instead administer a reprimand. After completing her schooling, RD goes to university and obtains a degree in criminology. She decides to pursue a career in the police service and applies to South Wales Police for a job as a service support officer, with a view to gaining experience in order to apply to become a police constable in due course. She is asked to disclose whether she has any convictions or cautions and discloses the reprimand, by now eight years in the past. She has had no other contact with the criminal justice system in the meanwhile and, apart from the reprimand, is of unblemished good character. Her application is rejected out of hand (“rejected at an early stage in our recruitment process, purely on the strength of this reprimand”) and, for good measure, she is told that it is unlikely that she would be successful in any future recruitment process for the police service. The rejection not only means that she is unable to pursue her chosen career in public service, but also brings on a major depressive illness. Her consultant psychiatrist advises that it is essential for her mental health that the reprimand is removed from her records, but her application for its deletion is refused. Instead the Chief Constable decides that it should be retained on the Police National Computer until she is deemed to have reached the age of 100.

2

These are the stark facts which have given rise to this appeal.

3

It is now common ground between the parties to this appeal that the rejection, by reason of the reprimand, of RD's application for the position of police support officer was unlawful. The reprimand which RD received was “spent” (in fact it was spent as soon as it was issued) and she should not have been asked to disclose it when she applied in 2015 to become a police support officer. While there are some positions to which the Rehabilitation of Offenders legislation does not apply, the position of police support officer is not (and since 29 th May 2013 has not been) one of them. But the exceptions to the legislation do apply when a person applies to become a police constable or a police cadet to undergo training with a view to becoming a constable. The legislation requires such an applicant, if so requested by the employer, to disclose all convictions and cautions, even those which are spent.

4

On RD's application for judicial review the Divisional Court (Fulford LJ and Green J) held that the rejection of RD's application was unlawful under Article 8 of the European Convention on Human Rights, not only because she should not have been asked about reprimands when applying for a position as a support officer, but also because in substance it served to preclude her from seeking employment as a constable or a cadet within the police service; and that the policy which then applied to deal with such applications (“the ACPO 2012 vetting policy”) was unlawful for the same reasons. The court granted a declaration that the Rehabilitation of Offenders 1974 (Exceptions) Order 1975 as amended, the statutory instrument which requires aspiring police constables to disclose spent convictions and cautions, was incompatible with Article 8 to the extent that (in substance) it requires an applicant for a position as a police constable or cadet to disclose what the court described as “low level, historical cautions”.

5

The Divisional Court decided not to grant any declaration relating to the ACPO 2012 vetting policy. That was because the court was informed, after circulation of its draft judgment to the parties, that a new Vetting Code of Practice was about to be placed before Parliament. That new Code of Practice has since been issued.

6

The Divisional Court granted permission to appeal but, because it was aware that the decisions of the Court of Appeal in R (P, G, W and Krol) v Secretary of State for Justice [2017] EWCA Civ 321 (“ P”) and of the Northern Ireland Court of Appeal in Re Gallagher [2016] NICA 42, where related issues were raised, were proceeding to the Supreme Court, it ordered that the declaration should not take effect until after that appeal had been determined and, anticipating that the judgment of the Supreme Court would indicate what the answer to this appeal should be, suggested that this appeal should await that judgment.

7

The Supreme Court has now given judgment in P [2019] UKSC 3, [2020] AC 185, but the parties disagree about its impact on the present appeal.

The issues

8

The Secretaries of State, supported by the National Police Chiefs' Council (“NPCC”) appeal against the order made by the Divisional Court. However, the appeal comes before us in what is in some respects an unsatisfactory way. Consideration in the round of the issues raised by the facts of this case would involve three matters, that is to say (1) the policy governing retention of records of reprimands given to children, (2) the legislation relating to disclosure of such reprimands by those applying to become police constables, and (3) the police policy on the use to which such disclosure may be put when dealing with an application.

9

In the event, although RD initially challenged the retention of her reprimand on the Police National Computer (“the PNC”), before the Divisional Court she conceded that its retention was not unlawful for all purposes. She accepted that it was lawful to retain the reprimand permanently so that it would be available to the sentencing judge in criminal proceedings in the event of her committing any further offence. Her challenge was to its retention for the purpose of disclosure to prospective employers. However, the Divisional Court was persuaded that this was not a suitable case in which to review the legality of the retention of a record of the reprimand and did not do so (and we were told that, since the judgment of the Divisional Court, RD's reprimand has in fact been deleted from the PNC by South Wales Police). The court focused instead on its disclosure to a prospective employer, here the police 1, and the use which that employer could make of it in assessing an employment application. The result is that as this appeal reaches this court, the issue of retention is not before us; the ACPO 2012 vetting policy on use has been held to be unlawful and there is no appeal from that decision; that policy has now been superseded; but the new policy, the 2017 Vetting Code, post-dated the decision of the Divisional Court and is not the subject of any challenge (or submissions) before us.

10

This appeal has therefore been concerned only with the issue whether the legislation requiring an applicant for a position as a police constable to disclose any reprimand

received as a child 2, regardless of the circumstances, is compatible with Article 8. However, that is to some extent an artificial question. The police will of course have access to the information on the PNC and, as part of the necessary process of vetting any applicant, will therefore learn of any convictions or cautions which the applicant may have, whether or not he or she is required to disclose them. A critical question, therefore, concerns the use to which that information may be put when considering the application. But that question is not before us
11

It is not disputed that Article 8 ECHR is engaged. Accordingly there are two issues. The first is whether the legislation requiring disclosure by would-be police constables of reprimands received as a child is “in accordance with the law” within the meaning of Article 8(2). The second is whether it is “necessary in a democratic society … for the prevention of disorder or crime … or for the protection of the rights and freedoms of others”.

12

Ms Kate Gallafent QC for the Secretaries of State submits that the reasoning of the Supreme Court in P, holding that a legislative scheme designed by reference to categories of case, and with the expectation of employers having careful regard to disclosed information, was both “in accordance with the law” and (with two exceptions) proportionate, is equally applicable in the present case; and that the Supreme Court's exception of “warnings and reprimands administered to a young offender” does not apply when the position being applied for is one for which the utmost integrity is required, including that...

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    • Queen's Bench Division (Administrative Court)
    • 12 February 2021
    ...particular pieces of information is of no identifiable utility.” 126 To similar effect, in R (RD) v Secretary of State for Justice [2020] EWCA Civ 1346; [2021] 1 WLR 262, Males LJ held at [86] that once “it is concluded that it was legitimate to have a bright line rule as to the disclosur......

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