At long last the Supreme Court has handed down its judgment in R (on the application of T and another) -v- Secretary of State for the Home Department. Joanne Greaves considers where this leaves police practitioners and asks: is this the end of the story or does the area remain ripe for further debate?
Most readers will be more than familiar with the issues surrounding what should be included on an ECRC. This case involved two claimants: T, who had been warned at age 11 in relation to the theft of two bicycles and who, eight years later, wanted a place on a sports studies course; and JB, who had been cautioned at age 41 for stealing false nails from a shop and wished to be employed in the care sector.
The Supreme Court dismissed the appeals against the declarations of incompatibility in respect of the Police Act 1997. It allowed an appeal in relation to a declaration that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was ultra vires.
In relation to the Police Act, disclosure of T’s warnings was found to bear no rational relationship to the aim of protecting the safety of children with whom he might come into contact as an adult. The impact on JB’s private life of disclosing her caution for minor dishonesty was disproportionate to its likely benefit in achieving the objective of protecting people who were receiving care.
In relation to the Order, facilitating the vetting of potential applicants was a legitimate aim in accordance with Article 8 ECHR. However, there was no rational connection between the interference resulting from the requirement that a person disclose warnings received for minor dishonesty as a child and the aim of ensuring suitability of that person as an adult for the entire range of activities covered by the Order.
While the case progressed to the Supreme Court, new legislation was in fact passed to deal with the issues which the case highlighted.
The changes introduce protection from disclosure for ‘protected cautions’ and ‘protected convictions,’ and draw a notable distinction when the offender is a child. A caution is protected if it was given otherwise than for the 14 categories of offence listed and if at least six years have passed since the date of the caution (or two years if the person was a minor). A conviction is also protected if it was imposed otherwise than for any of the listed categories, if it did not result in a custodial sentence, if the person has not been convicted of any other offence and if at least 11 years have passed since the date of the conviction (or five and a half years if the person was a minor).
Amendments to the 1997 Act have the effect of restricting the content of a CRC and of an ECRC, where there is an obligation on the DBS to include details in the certificate of ‘every relevant matter’. The definition of a relevant matter has also been amended to tighten the obligation to disclose spent convictions and cautions, which is consistent with the narrower obligation under the 1975 Order.
The result is that information about the circumstances behind a spent conviction or a caution which is now no longer required to be disclosed in an ECRC will be disclosed as soft intelligence - but only where the police reasonably believe it to be relevant.
The amendments represent a departure from the former regime under which disclosure of all spent (in addition to unspent) convictions and of all cautions was required if questions were asked or the application for a certificate was made in the specified circumstances.
Where are we now?
It would be nice to think that the combination and challenges of the new legislation and the decision in this case will clear up all previous problems in this area. However, it remains to be seen how fairly the new regime will operate in practice. This is an understandably emotive topic for those trying to progress their lives while dealing with the perceived barriers that previous behaviour may place in their way. While the scope of what to include in an ECRC is now limited, there remains a large element of subjectivity involved, meaning that decisions will still be challenged. The need for decision making to be clearly and carefully recorded remains crucial - since it is unlikely that forces will have seen the end to challenges such as these.