29 January 2013

R (on the application of T, JB and AW) (Appellant) v (1) Chief Constable of Greater Manchester; (2) Secretary of State for the Home Department; (3) Secretary of State for Justice (Respondents) & (1) Liberty; (2) Equality and Human Rights Commission (Interveners)

Case no: C1/2012/0520, C1/2011/1660 & C1/2011/1678

The Court of Appeal has held that the disclosure provisions of the Police Act 1997 (PA) and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (ROAE) are incompatible with Article 8 of the European Convention on Human Rights 1950 and ultra vires the Rehabilitation of Offenders Act 1974 (ROA). However, the Court held that the exclusion of certain convictions from becoming spent under the ROA itself was held to be compatible with Article 8.

The relevant provisions of the PA relate to the disclosure of convictions and cautions on criminal record checks. The ROA provides a scheme where convictions, cautions, warnings and reprimands become spent after certain periods of time. When this period is expired, the person convicted or cautioned is entitled to be treated as if they never committed the offence. Certain convictions cannot become spent under the ROA. The ROAE then further excludes certain roles from the benefit of a spent conviction.

The Court considered that Article 8 prevents the disclosure of cautions on criminal records checks for both T and JB under the PA and ROAE, and so both the PA and ROAE were ultra vires. The Master of the Rolls said that this was because their cautions were administered in private, and so became part of their private life and the disclosure of the information relating to cautions was likely to adversely affect employment opportunities. However, in the case of AW, the ROA’s prevention of her conviction for manslaughter becoming spent was held to be compatible with Article 8.

The applicants were granted leave to appeal to the Supreme Court. The decision will not take effect pending determination by the Supreme Court of permission to appeal – the Home Office have since made such an application.

The full judgment can be read here.