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

Why care?

The Rehabilitation of Offenders Act 1974 provides that criminal convictions become "spent" (and therefore, the individual is not required to disclose them and a prospective employer may not consider them or the individual's failure to disclose in coming to a decision whether or not to employ that person). Cautions are "spent" as soon as they have been given.  
A caution is given to a person to offer a proportionate response to low-level offending and a deterrent to future criminal behaviour following admission of guilt.

However, there are some exceptions to the rules on reference to spent convictions and cautions when applying for certain roles.  These include jobs working with children or vulnerable adults, which require all convictions and cautions to be disclosed.

In this case, two individuals claimed that the disclosure of cautions given to them in criminal records checks was in breach of their right to respect of their private life under article 8 of the European Convention on Human Rights.

The case

The case was brought by two individuals who had been given police cautions. The first (T) was cautioned for the theft of two bicycles when he was 11 years old.   In 2010 he applied for a sports studies course, which would entail his contact with children and therefore he was required to obtain an enhanced criminal record certificate (ECRC) under the Police Act 1997, which shows amongst other information all convictions or cautions given to an individual.  The enhanced certificate disclosed the warnings. The second (JB) was cautioned when she was 41 years old for shoplifting a packet of fake nails. An ECRC disclosed the caution and as a result she was turned down for employment in the care sector.

The individuals brought separate claims for judicial review of the decision to disclose the cautions, claiming that the scheme for issuing criminal records certificates and for requiring a person to disclose spent warnings to certain future employers was incompatible with Article 8 of the ECHR.  Both claims failed before the High Court. 

The Court of Appeal found that whilst the disclosure of information about past convictions and cautions did interfere with the right to respect for private life under Article 8, the statutory scheme had the legitimate aims of protecting employers, vulnerable adults and children and enabling employers to assess whether an individual was suitable for that kind of role. However, the blanket disclosure of all convictions and cautions irrespective of relevance was disproportionate and therefore, this was incompatible with Article 8.

The Supreme Court dismissed the appeal, agreeing with the Court of Appeal that the disclosure of the cautions was an interference with the individuals' right to a private life. Part V of the Police Act 1997 does not satisfy the requirement that the disclosure be "in accordance with the law".

The disclosure of all cautions and convictions went further than necessary to achieve the legitimate aim and did not strike a fair balance between the rights of the individuals and of others. 

There was no "rational relationship" between T's caution for stealing bikes as a child and the aim of protecting children.  In JB's case, this was a caution for a minor dishonesty several years previously, and the impact of its disclosure on her private life was disproportionate to the benefit in achieving the objective of protecting those for whom she would have cared.

What to take away?

The statutory scheme for checking criminal records was a disproportionate means of achieving a legitimate aim (to protect employers and the children and vulnerable adults in their care) and therefore a breach of the individuals' right to a private life under Article 8 of the European Convention on Human Rights.

However, between the Court of Appeal and Supreme Court hearings, the system has now changed and there is "a more calibrated system for identifying material which should be the subject of disclosure under the Police Act 1997 and the Exceptions Order [2013]".  In the Government's view, these now remedy the issue.  However, since the declaration was made rightly by the Court of Appeal, it should stand.