The Court of Appeal considers that the current criminal records disclosure scheme breaches Article 8 ECHR
T, JB and AW issued judicial review proceedings arising out of the current criminal records disclosure scheme. They contended that in certain respects the provisions of the Police Act 1997 (“the 1997 Act”), the Rehabilitation of Offenders Act 1974 (“the 1974 Act”) and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (“the Order”) were incompatible with Article 8 of the European Convention on Human Rights.
In T’s case an enhanced criminal record certificate (“ECRC”) had been required by his University in order to allow him to take part in a sports studies course which would involve teaching children. Pursuant to the 1997 Act and the decision of the Court of Appeal in Chief Constable of Humberside v Information Commissioner  1 WLR 1136 the ECRC necessarily disclosed the existence of two warnings that T, otherwise a man of good character, had received when he was 11 years old in connection with two stolen bicycles. T challenged the Chief Constable of Greater Manchester Police’s decision to include the warnings on the ECRC.
In JB’s case JB required an ECRC in order to obtain employment in the care sector. As above, the ECRC, necessarily disclosed the existence of a caution which JB had received for a minor shoplifting offence committed 8 years prior to her application for employment. JB issued proceedings claiming that, if the legislative scheme which required the disclosure of a caution could not be read down then it was incompatible with article 8 of the ECHR.
AW wanted to get a job in the Army, she applied for judicial review claiming that the effect of the 1974 Act (that her conviction for manslaughter when she was 16 would never be spent) was incompatible with Article 8.
The Court of Appeal’s decision
The Court considered that in T and JB’s case the current legislative scheme interfered with their rights under Article 8. The Court accepted that whilst such interference pursued a legitimate aim the legislative regime (namely the 1997 Act and the Order, which removes the protection of the 1974 Act in specified circumstances in relation to applications for jobs working with children and vulnerable adults) that had been enacted to achieve that aim was disproportionate. In particular it did not seek to control the disclosure of information by reference to whether it was relevant to the purpose of enabling employers to assess the suitability of an individual for a particular kind of work.
The Court allowed the appeals of T and JB, finding that neither the provisions of the 1997 Act nor the provisions of the Order were compatible with Article 8. In respect of both T and JB the Court made a declaration of incompatibility in relation to the disclosure provisions of the 1997 Act and in respect of T a declaration that the Order was ultra vires to the 1974 Act. In relation to AW the court refused her application for judicial review finding that Parliament was entitled to take the view that some offences are so serious that they should never be spent and that accordingly, the regime under the 1974 Act was not disproportionate.
The decision in this case will not take effect, pending determination by the Supreme Court of an application permission to appeal. However, should the Supreme Court uphold the Court of Appeal’s decision regulators will have to address their own policies on the recruitment of those with previous convictions or cautions and consider the kind of obligations incumbent upon members to disclose to their regulator any such matters which would not automatically be disclosed by a check on the criminal records bureau.