“ … a question which … so far as it relates to convictions, is a question to which section 4(2)(a) or (b) of the [1974 Act] (effect of rehabilitation) been excluded by an order of the Secretary of State under section 4(4) of that Act …”
“14. The effect is that where there are two or more convictions, they are always disclosable on a CRC or an ECRC. Further, where a conviction is of a specified kind or resulted in a custodial sentence, or is ‘current’ (ie for an adult within the last 11 years and for a minor within the last five years and six months), then it will always be disclosable. 15. The offences listed in subsection (6D) are extensive, and include murder and offences specified under Schedule 15 to theCriminal Justice Act 2003 , ie more serious offences of violence (including assault occasioning actual bodily harm) and all sexual offences, but not, for example theft or common assault. 16. The primary feature of this new scheme which ‘catches’ the claimants in the present case is that where there is more than one conviction all of them are disclosable throughout the subject's lifetime. However, in the case of one of the claimants (P) one matter is not disclosable; that is, the theft which resulted in a caution alone and no conviction. That flows from the fact that that offence is neither a ‘subsection (6D) offence’ and is not ‘current’.”
“The fundamental objection to the scheme is that it does not seek to control the disclosure of information by reference to whether it is relevant to the purpose of enabling employers to assess the suitability of an individual for a particular kind of work. Relevance must depend on a number of factors including the seriousness of the offence; the age of the offender at the time of the offence; the sentence imposed or other manner of disposal; the time that has elapsed since the offence was committed; whether the individual has subsequently re-offended; and the nature of the work that the individual wishes to do. These same factors also come into the picture when the balance is to be struck (as it must be) between the relevance of the information and the severity of any impact on the individual's article 8(1) right.”
“A proportionate scheme would not require the individual consideration of each case. Just as in the case of R (F), so here Parliament could produce a proportionate scheme which did not insist on an examination of the facts of every case. A number of options have been suggested, including a range of what might be called ‘bright-line’ sub-rules. At page 22 of her initial report, Mrs Mason gave examples of criteria that could be used for a filtering process. These were (i) a spent conviction for certain specified offences must always be disclosed; (ii) a spent conviction for certain specified offences must never be disclosed irrespective of any other considerations; and (iii) some spent convictions might or might not be disclosed depending on a set of factors such as age when one committed the offence, whether it was a single offence, how long ago it was committed etc.”
“No distinction is made based on the seriousness or the circumstances of the offence, the time which has elapsed since the offence was committed and whether the caution is spent. In short, there appears to be no scope for the exercise of any discretion in the disclosure exercise. Nor, as a consequence of the mandatory nature of the disclosure, is there any provision for the making of prior representations by the data subject to prevent the data being disclosed either generally or in a specific case. The applicable legislation does not allow for any assessment at any stage in the disclosure process of the relevance of conviction or caution data held in central records to the employment sought, or of the extent to which the data subject may be perceived as continuing to pose a risk such that the disclosure of the data to the employer is justified.”
"206. In the present case, the court highlights the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. It further refers to the absence of any mechanism for independent review of a decision to retain or disclose data, either under common law police powers or pursuant to Part V of the 1997 Act. Finally, the court notes the limited filtering arrangements in respect of disclosures made under the provisions of the 1997 Act: as regards mandatory disclosure under section 113A, no distinction is made on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought. 207. The cumulative effect of these shortcomings is that the court is not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicant's private life have not been, and will not be, disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicant's caution data accordingly cannot be regarded as being in accordance with the law. There has therefore been a violation ofarticle 8 of the Convention in the present case. This conclusion obviates the need for the court to determine whether the interference was 'necessary in a democratic society' for one of the aims enumerated therein."
“Put shortly, legislation which requires the indiscriminate disclosure by the state of personal data which it has collected and stored does not contain adequate safeguards against arbitrary interferences with article 8 rights.”
“In the light of the judgment in MM v United Kingdom, it is plain that the disclosure of the data relating to the respondents' cautions is an interference with the right protected by article 8(1). The legislation governing the disclosure of the data, in the version with which these appeals are concerned, is indistinguishable from the version of Part V of the 1997 Act which was considered in MM. That judgment establishes, in my opinion persuasively, that the legislation fails to meet the requirements for disclosure to constitute an interference ‘in accordance with the law’. That is so, as the court explained in MM, because of the cumulative effect of the failure to draw any distinction on the basis of the nature of the offence, the disposal in the case, the time which has 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 data under section 113A.”
“84. In my judgment, in taking the step that it did in the T case, the Supreme Court moved our domestic understanding of the requirement for an interference with Article 8 rights to be ‘in accordance with the law’ a significant distance from what had previously been understood. ...” 85. As I understand it, the question must now be whether the present statute affords the individual adequate protection against arbitrariness, but also, in order for an interference with Article 8 rights to be ‘in accordance with the law’ there must be adequate safeguards which have the effect of enabling the proportionality of the interference to be adequately examined.”
“If there are insufficient safeguards to ensure that the data retained is relevant to and necessary for the purpose for which it is disclosed to the third party, then, despite the existence of the filtering process under the more recent national measures that have the status of law domestically, the overall scheme for disclosure cannot be said to have the characteristics that the ECHR requires in order for the interference with private life caused by the transmission to be in accordance with the law.”
“The objective behind the regime created by the 1975 Order and by Part V of the 1997 Act was supremely important. It was to protect various members of society, particularly vulnerable groups such as the elderly and children but also, for example, consumers of financial advice, from exposure to persons able and likely to mistreat, neglect or defraud them. On any view the contents of the Order and of the Act were rationally connected to the objective. The issue surrounds the third and fourth questions, in relation to both of which the Secretaries of State make a valid preliminary point. It is that whether the measures were necessary to accomplish the objective and whether the balance was fairly struck are issues of fine judgment which, by affirmatively approving the 1975 Order and by enacting the 1997 Act, Parliament itself determined and that the courts should therefore hesitate long before concluding that its judgments in these respects was wrong.”
“Nor, to take the present cases, can the Secretaries of State contend that it is impossible to devise a more calibrated system for identifying material which should be the subject of disclosure under the 1997 Act and the 1975 Order. For, in introducing the 2013 amendments, they duly devised it! Indeed back in 2010 the Secretary of State for the Home Department commissioned Mrs Mason’s review. The Secretaries of State convincingly protest that Mrs Mason’s commission was not born of any acceptance that the regime which then existed violated rights under article 8 … But it was the Secretary of State for the Home Department who chose to describe Mrs Mason’s remit as being to scale back the criminal records system (obviously including disclosure under the 1997 Act) ‘to common sense levels’.”
“I cannot however see any rational connection between minor dishonesty as a child and the question whether, as an adult, the person might pose a threat to the safety of children with whom he came into contact. There is therefore no rational connection between the interference with article 8 rights which results from the requirement that a person disclose warnings received for minor dishonesty as a child, and the aim of ensuring the suitability of such a person, as an adult, for positions involving contact with children, let alone his suitability, for the remainder of his life, for the entire range of activities covered by the 1975 Order.”
“Simply to say that the line could have been drawn elsewhere does not demonstrate that the same policy objective could have been achieved by a less intrusive means.”
“In my judgment, the claimant has at least a highly arguable case that despite the statutory scheme as amended, disclosure of the data to a third party is not relevant and proportionate: (i) Until 1998 it is unlikely that a 12-year-old would have been held to have criminal responsibility for an act of sexual exploration with his peers. The UK has one of the youngest ages of criminal responsibility in Europe. It is necessary to temper the long arm of the criminal law with other measures designed to ensure that children do not become stigmatised as criminals for engaging in activity that might be seen as an ordinary part of the process of growing up. (ii) Given the investigator and prosecutor's assessment of the nature of the offending and the CPS guidance on sexual offences, the public interest did not require a prosecution and it was arguably a borderline line case for a reprimand. In reaching the decision that he did, the prosecutor did not consider that it was in the public interest to give G a record and did not intend to give him one and thereby damage his welfare and prospects of rehabilitation. (iii) Until March 2006, any reprimand given to a juvenile would have been weeded out under the terms of earlier document retention policy and therefore not available for mandatory disclosure. (iv) Until October 2009 such material would have been ‘stepped down’ after ten years because of the absence of any other conduct causing concern and thus, as the police understand the law, not available for automatic disclosure. This practice changed after the Humberside case[2010] 1 WLR 1136 but that case did not consider the justification of interference with article 8 by disclosure to a private employer. (v) If the material had been weeded out and stepped down from central records but not deleted altogether, it would still be available for disclosure in an enhanced certificate if the chief constable considered it relevant and proportionate. This is the very judgment that the claimant submits is needed before a spent caution administered to a juvenile is ever disclosed. (vi) Here the chief constable's own experienced disclosure officer considered that provision of the statutory information to an employer would have had a disproportionate effect. He sought to mitigate this by adoption of some explanation of the surrounding circumstance that tended to show that the offending was not abusive or exploitative and thus not evidence that G was a potential risk to young people. (vii) Since 1974 Parliament has maintained the ROA scheme where offenders sentenced to less than four years imprisonment or detention can treat their sentences as spent. In 2008 Schedule 2 paragraph 1(1)(b) of the ROA provided that an unconditional caution as this reprimand is now considered to be lapses immediately that it is issued. The provisions of the ROA and the previous ‘weeding out’ and ‘stepping down’ practices all point to a starting point in the proportionality analysis that not all such matters should be automatically disclosed. (viii) Filtering out of single minor convictions is one way of achieving proportionality. In that context, the policy choice of which classes of conviction should not be filtered out is a matter to which a margin of appreciation should be afforded to the executive and the legislature, for the reasons given in W. However, merely filtering out of single minor convictions is insufficiently sensitive a means of distinguishing between disclosures that are relevant, necessary and proportionate to the legitimate aim that would justify interference with significant aspects of private life (see Gallagher and R (P)). (ix) In the present case, the issue is not multiple cautions, but an overall examination of relevance and proportionality. These considerations could be sufficiently addressed by treating spent convictions and cautions as intelligence data that should only be disclosed when relevant and proportionate to the purpose of the request rather than automatically. (x) Further, even if different considerations should apply to adult offenders, who could be assumed to be mature enough to understand what they were doing at the time they offended and the need to make a persuasive case that they had changed, the case for procedural safeguards where reprimands have been administered to offenders under 14 is that much more compelling. An interference with article 8 rights that does not comply with the requirements of the international law obligations of the United Kingdom is unlikely to be justified. The requirements of international law relating to the welfare of the child generally are well known and have been applied in the article 8 context. They were reviewed by Baroness Hale of Richmond in Durham and Lord Reed JSC in T. Disclosure of a child's reprimand has a deleterious effect on subsequent social life and there are strong pointers that this should only take place where strictly necessary and proportionate. (xi) Contrary to the concerns of the Secretaries of State and Ms Foulds, there is no complexity or impracticality about devising a procedure that enables such a judgement to be made as the statutory mechanism already exists in section 113B cases. (xii) It is unfair to require the employer to make that kind of judgement, with no legal remedy available to the claimant to supervise errors of approach and ensure proportionality of decision making.”
“In these days of keen competition and defensive decision-making will the candidate with the clean record not be placed ahead of the other, however apparently irrelevant his offence and even if otherwise evenly matched? More fundamentally, the regime reflects an exception to the eradication of the offence under the 1974 Act and it is the fact, or even the potentiality, of disclosure, whatever its ultimate consequences, which causes the interference and for the person creates, as a minimum, embarrassment, uncertainty and anxiety.”
“Exceptional cases will by definition be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond doubt that no offence existed, that might, having regard to all the circumstances be viewed as an exceptional circumstance.”
“This was a rather unusual case in that the proposed disclosure regarding the enhanced CRB check essentially had the intention of assisting the applicant by replacing the information held on the PNC in a fairer context. … There was also a concern that automatic disclose of the reprimand particularly in view of the nature offence would likely cause an employer more concern than perhaps the circumstances actually warranted. … This is a strange situation in that it is the automatic disclosure of the PNC record that would likely provide an unfair picture of events causing the potential adverse effect on the applicant. In view of the lack of a specific risk this potential adverse effect is disproportionate when viewed alongside the applicant’s rights.”
“I am not satisfied that the prosecutor in 2006 failed to have regard to the guidance or that he otherwise reached a decision that was irrational or unlawful. In my judgment, the CPS guidance must be read as a whole and no single paragraph is dispositive. The fact that no force was used, the younger boys agreed to participate in the dare or sexual experiment and the complainants may have had some previous sexual encounters before voluntarily engaging in the activity with G, are relevant but not conclusive factors against a reprimand being issued. The prosecutor was also entitled to note that C and D were under 13, incapable of giving consent and it is the policy of the law that children of such a young age needed particular protection from sexual experiences they are unlikely to have fully understood at their early age. The activity was not confined to a single incident or a single child but had carried on for a year or so suggesting that some expression of official concern was needed.”
“I do not conclude that the filtering rules mean that it is impossible, unlawful or otherwise impracticable for a police commissioner in the position of the defendant to delete or expunge a caution, should he decide that that was the appropriate course. I am fortified in that conclusion in part by the fact that the claimant himself in his grounds applies for an order to delete the caution. The defendant has a unit which is entitled The Early Deletion Unit which would hardly need to exist if the power did not exist. I am quite satisfied that there is such a power in the event that the Commissioner seeks to exercise it. The filtering rules and the policy set out behind those rules is not the provision which, in law, involves the retention of this caution. The provision in law which so involves the retention of the caution is the 2013 amendment order. That order was considered by the Supreme Court in T, in my judgment, is in accordance with law.”
“It is therefore wrong for courts to assume that, where a person’s human rights have been violated by the application of subordinate legislation in circumstances in which the application was not mandated by primary legislation, the appropriate remedy is always to declare the subordinate legislation to be ultra vires.”
“… could not automatically be extended to the 1975 Order, since the question whether the domestic law affords adequate safeguards against abuse must be judged by reference to the degree of intrusiveness of the interference being considered … and it may be arguable that the requirements in the context of the 1975 Act are somewhat less stringent.”
“The conclusion about T in the present case is, however, of an entirely different character. It is that, in the light of the circumstances surrounding his receipt of the warnings, the requirement in the 1975 Order that he should disclose them to the college and its entitlement to act in reliance on them violated his rights under article 8. It cannot possibly be said that the operation of the order will always be such as to violate the rights of those required to make disclosure of spent convictions and cautions under it: for in some, perhaps many, cases the circumstances of the conviction or caution will not render its disclosure disproportionate to the objective behind the order.”