Laws requiring disclosure of cautions for minor past offences breach right to private life

R (on the application of T and another) v Secretary of State for the Home Department and another [2014] UKSC 35 (18 June 2014)

Summary

The UK Supreme Court considered the right to privacy in the context of laws requiring the issuance of criminal record certificates that contain references to minor past offences. The Court held that laws requiring the disclosure of data relating to cautions and warnings given for minor offences constituted an interference with the right to respect for private life enshrined in article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).

Facts

In 2002 the first respondent, T (aged 11), received two warnings from police for stealing two bicycles. In 2010, when T applied for enrolment in a sports studies course, which entailed contact with children, he was required to provide an "enhanced criminal record certificate" (ECRC). The ECRC disclosed T's warning, as a result of which T's place in the course was jeopardised.

Similarly, in 2001 the second respondent, JB (aged 41), received a caution from police for stealing a packet of false fingernails. When JB completed a training course in the care sector in 2011, she was also required to provide an ECRC.  The ECRC disclosed JB's caution, as a result of which JB's training course provider told her it felt unable to put her forward for employment in the sector.

The statutory scheme

In accordance with the Rehabilitation of Offenders Act 1974 (1974 Act), warnings and cautions (together "cautions"), do not need to be disclosed to a potential employer and the employer cannot rely on such disclosures to prejudice an applicant or employee in any way. The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (1975 Order) outlines exceptions to this rule, including admission to certain professions, offices and employment, working with children and national security. Sections 113A and 113B of the Police Act 1997 (1997 Act) grant the power to produce an ECRC, which include cautions, when an application falls within the scope of the 1975 Order.

Procedural history

This was an appeal brought by the Secretary of State for the Home Department and the Secretary of State for Justice with respect to declarations made by the Court of Appeal that, pursuant to section 4 of the Human Rights Act 1998 (Human Rights Act), the relevant provisions in the 1997 Act were incompatible with article 8 of the Convention and the relevant provisions of the 1975 Order were ultra vires the 1974 Act.

Amendments to legislation

In the intervening period in 2013, the Secretaries of State made amendments to the 1997 Act and the 1975 Order with a view to eliminating the incompatibilities and invalidities identified by the Court of Appeal.

Decision

The Court held that laws requiring the disclosure of data relating to the respondents' cautions constituted an interference with the right to respect for private life protected by article 8 of the Convention.

The Court observed that the cautions were received in private and whilst they were on public record, as they "receded into the past" they became part of the respondents' private lives. It further considered that the laws obliging disclosure had the effect of jeopardising the respondents' ability to pursue their chosen careers and must be regarded as interfering with their private lives, contrary to article 8(1) of the Convention.

Having determined that the relevant provisions of 1997 Act and the 1975 Order constituted an interference with the respondents' private lives, the Secretaries of State bore the onus of establishing, pursuant to article 8(2) of the Convention, that the interference was (1) in accordance with law and (2) necessary in a democratic society.

1997 Act

The majority considered that the relevant provisions of the 1997 Act were not "in accordance with law" due to the cumulative effect of the legislation's failure to draw any distinction on the basis of:

• the nature of the offence;
• the disposal in the case;
•  the time elapsed since the offence took place or the relevance of the data to the employment sought; and
•  the absence of any mechanism for independent review of a decision to disclose.

The Court unanimously held that the relevant provisions of the 1997 Act were also not "necessary in a democratic society".  The disclosures of the cautions went further than was necessary to accomplish the statutory objective, namely, to protect various members of society from exposure to persons able and likely to mistreat, neglect or defraud them.  Further, the legislation failed to strike a fair balance between the rights of the individual and the interests of the community.

All Lords agreed that the Court of Appeal's declaration of incompatibility should be upheld.

1975 Order

The Court unanimously found that the Secretaries of State could not discharge the onus of establishing that the interference arising from the 1975 Order was "necessary in a democratic society". An obligation to disclose minor dishonesty as a child does not bear a rational connection to the legitimate aim of protecting children from adults who might pose a threat.

Having so found, the majority considered it unnecessary to answer the question of whether the interference was "in accordance with law", which appeared to be "less straightforward".

Despite the Court's determination that the interference arising from the 1975 Order was not necessary in a democratic society, given the 1975 Order was subordinate legislation (amongst other reasons), the Court could not make a declaration of incompatibility in relation to the 1975 Order under section 4 of the Human Rights Act.

The Court further held, for various reasons, that the appeal by the Secretaries of State against the Court of Appeal's decision that the 1975 Order was ultra vires should be allowed.

Nevertheless, in light of the 2013 amendments to the 1975 Order, the Court considered the respondents could be regarded as having obtained just satisfaction.  Accordingly, it was not necessary to grant a judicial remedy with respect to the 1975 Order.

Commentary

The case highlights the need to ensure that minor and dated offences do not unnecessarily and disproportionately inhibit future endeavours, particularly in the case of children. This is an important principle particularly in the context of long-term data retention policies.

This case also reveals the impact of judicial consideration of human rights. The amendments made by the legislature to the 1997 Act and 1975 Order in response to the Court of Appeal decisions apply a more nuanced approach to when disclosure of cautions is required. That such amendments were made prior to the Supreme Court decision demonstrates the impetus for reform created by a legal challenge.

The decision is available here.

Brigid McCarthy is a winter clerk at DLA Piper Australia.