T, R (on the application of) v Greater Manchester Police & Anor [2012] EWHC 147 (Admin)

“6. Part V of the 1997 Act provided for the issue of three types of certificates. Section 112 dealt with the issue of a criminal conviction certificate. This is a certificate which gives prescribed details of every conviction of the applicant which is recorded on central records, or states that there is no such conviction. Section 113 dealt with the issue of a criminal record certificate. This is a certificate which gives the prescribed details of every conviction within the meaning of the Rehabilitation of Offenders Act 1974 and a caution, or states that there is no such matter. A certificate of this kind may only be issued where the application is countersigned by a registered person and is accompanied by a statement by that person that the information is required for a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 has been excluded by an order of the Secretary of State. Section 115 dealt with the issue of an enhanced criminal record certificate. 7. Sections 113 and 115 were repealed with effect from 6 April 2006 and replaced by sections 113A and 113B, inserted in the 1997 Act by section 163(2) of the Serious Organised Crime and Police Act 2005. This case concerns an ECRC that was issued under section 115 before it was repealed. To avoid confusion I shall concentrate on the wording of that section. 8. Section 115, as amended by the Criminal Justice Act 2003 and so far as material for present purposes, provided: “(1) … The Secretary of State shall issue an enhanced criminal record certificate to any individual who – (a) makes an application under this section in the prescribed manner and form countersigned by a registered person … (2) An application under this section must be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked- (a) in the course of considering the applicant’s suitability for a position (whether paid or unpaid) within subsection (3) or (4), or (b) for a purpose relating to any of the matters listed in subsection (5) … (3) A position is within this subsection if it involves regularly caring for, training, supervising or being in sole charge of persons aged under 18. (4) A position is within this subsection if – (a) it is of a kind specified in regulations made by the Secretary of State, and (b) it involves regularly caring for, training, supervising or being in sole charge of persons aged 18 or over.”

“In this section – ‘central records’ means such records of convictions and cautions held for the use of police forces generally as may be prescribed; ‘exempted question’ means a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by an order of the Secretary of State under section 4(4); ‘relevant matter’ means – (i) a conviction within the meaning of the Rehabilitation of Offenders Act 1974, including a spent conviction, and (ii) a caution.” 10. Sections 115(6) and 115(7) provided as follows: “(6) An enhanced criminal record certificate is a certificate which – (a) gives (i) the prescribed details of every relevant matter relating to the applicant which is recorded in central records, and (ii) any information provided in accordance with subsection (7), or (b) states that there is no such matter or information. (7) Before issuing an enhanced criminal record certificate the Secretary of State shall request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion – (a) might be relevant for the purpose described in the statement under subsection (2), and (b) ought to be included in the certificate.”

“24. The issue as to what does and does not lie within the scope of the article 8 right to respect for private life has been examined in some detail in R (Wright) v Secretary of State for Health, paras 30-32 and in In re British Broadcasting Corporation [2009] UKHL 34, [2009] 3 WLR 142, paras 18-20. In the context of this case it is sufficient to note that it has been recognised that respect for private life comprises, to a certain degree, the right to establish and develop relationships with other human beings: X v Iceland (1976) 5 DR 86; Niemietz v Germany (1992) 16 EHRR 97, para 29. Excluding a person from employment in her chosen field is liable to affect her ability to develop relationships with others, and the problems that this creates as regards the possibility of earning a living can have serious repercussions on the enjoyment of her private life: see Sidabras v Lithuania (2004) 42 EHRR 104, para 48. She is entitled also to have her good name and reputation protected: see Turek v Slovakia (2006) 44 EHRR 861, para 109. As Baroness Hale said in R (Wright) v Secretary of State for Health, para 36, the fact that a person has been excluded from employment is likely to get about and, if it does, the stigma will be considerable. 25. There is another aspect of the right to respect for private life that needs to be brought into account, as it is directly relevant to the effect on a person’s private life of the release of information about him that is stored in public records. In R v Chief Constable of the North Wales Police, Ex p AB [1999] QB 396 Lord Bingham of Cornhill CJ said in the Divisional Court that he was prepared to accept (without deciding) that disclosure of personal information that the applicants wished to keep to themselves could in principle amount to an interference with the right protected by article 8: [1999] QB 396, 414. At p 416 Buxton J put the point more strongly when he said: “I do however consider that a wish that certain facts in one’s past, however notorious at the time, should remain in that past is an aspect of the subject’s private life sufficient at least to raise questions under article 8 of the Convention.”

“Moreover, public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. This is all the truer where such information concerns a person’s distant past.”

“40. The question whether the information might be relevant is not, however, the end of the matter. An opinion must also be formed as to whether it “ought” to be included in the certificate. It is here, as the guidance that is available to the police correctly recognises, that attention must be given to the impact that disclosure may have on the private lives of the applicant and of any third party who is referred to in the information. For the reasons I have already given (see paras 22-29), I consider that the decisions which the chief officer of police is required to take by section 115(7) of the 1997 Act will fall within the scope of article 8(1) in every case. So in every case he must consider whether there is likely to be an interference with the applicant’s private life, and if so whether that interference can be justified. … 42. So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant’s right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place. As the many additions that have been made to the list of matters in section 115(5) show, the use that is being made of the requirement to obtain an ECRC has increased substantially since the scheme was first devised. The number of disclosures of information by means of ECRCs has exceeded 200,000 for each of the last two years (215,640 for 2007/2008; 274,877 for 2008/2009). Not far short of ten per cent of these disclosures have had section 115(7) information on them (17,560 for 2007/2008; 21,045 for 2008/2009). Increasing use of this procedure, and the effects of the release of sensitive information of this kind on the applicants’ opportunities for employment or engaging in unpaid work in the community and their ability to establish and develop relations with others, is a cause of very real public concern as the written intervention submitted by Liberty indicates. 43. As Liberty also point out, it is no answer to these concerns that the ECRC is issued on the application of the persons concerned. It is true that they can choose not to apply for a position of the kind that requires such a certificate. But they have, in reality no free choice in the matter if an employer in their chosen profession insists, as he is entitled to, on an ECRC. The answer to the question whether there is any relevant information is likely to determine the outcome of their job application. If relevant information is disclosed they may as a result be cut off from work for which they have considerable training and experience. In some cases they could be excluded permanently from the only work which is likely to be available to them. They consent to the application, but only on the basis that their right to private life is respected. … 45. The correct approach, as in other cases where competing Convention rights are in issue, is that neither consideration has precedence over the other: Campbell v MGN Ltd [2004 ] UKHL 22, [2004] 2 AC 457, para 12, per Lord Nicholls of Birkenhead. The rating table in MP9 should be restructured so that the precedence that is given to the risk that failure to disclose would cause to the vulnerable group is removed. It should indicate that careful consideration is required in all cases where the disruption to the private life of anyone is judged to be as great, or more so, as the risk of non-disclosure to the vulnerable group. The advice that, where careful consideration is required, the rationale for disclosure should make it very clear why the human rights infringement outweighs the risk posed to the vulnerable group also needs to be reworded. It should no longer be assumed that the presumption is for disclosure unless there is a good reason for not doing so.”

“That said, there can be no doubting the impact an enhanced criminal record certificate (“ECRC”) containing any adverse information is likely to have on the person’s prospects of obtaining the desired employment and it therefore seems to me imperative in every case to ensure that the public interest in safeguarding children really does justify the relevant disclosure.”

“68. As to the first issue, I am firmly of the view that article 8 is engaged in this case. An enhanced criminal record certificate (an “ECRC”) which contains particulars of any convictions (potentially including spent convictions) or cautions (under section 115(6)(a)(i) and 113(5) of the 1997 Act), or any other information “which might be relevant” and which “ought to be included in the certificate” (under section 115(6)(a)(ii) and 115(7) of the 1997 Act), will often have a highly significant effect on the applicant. In the light of the wide ambit of section 115 (extending as it does to social workers and teachers, as well as to those “regularly caring for, training, supervising or being in sole charge of” children), an adverse ECRC (i.e. an ECRC within section 115(6)(a), rather than section 115(6)(b)) will often effectively shut off forever all employment opportunities for the applicant in a large number of different fields, for the reasons given, in relation to other legislation, by Baroness Hale of Richmond in R (Wright) and others v Secretary of State for Health [2009] UKHL 3, [2009] 2 WLR 267, para 22. 69. An ECRC must be sought for each job application, but, once an adverse ECRC has been issued in relation to one application, it is, in the absence of special factors, likely to be issued in the same terms in relation to all future applications for posts falling within the ambit of section 115. Even where the ECRC records a conviction (or caution) for a relatively minor, or questionably relevant, offence, a prospective employer may well feel it safer, particularly in the present culture, which, at least in its historical context, can be said to be unusually risk-averse and judgmental, to reject the applicant. The same point applies to an ECRC which only contained material falling within section 115(6)(a)(ii) and (7), even where the “chief officer’s opinion” that the material should be included, while rational, was not one which many chief officers would have shared. (Having said that, there will no doubt be cases where the employer will conclude that the information in the adverse ECRC is irrelevant or has been satisfactorily explained or disposed of by the applicant, but such cases would, I suspect, be comparatively rare.) … 71. Quite apart from this reason, while it may be said to be a little artificial to treat it as a separate reason, I consider that article 8 will, at least frequently, be engaged by an adverse ECRC, because it will involve the release of information about the applicant, which is stored on public records. Even where the information released in the ECRC is already in the public domain (as will be the case with almost all convictions), it seems to me that re-publication of the information can often engage article 8: see, in the domestic context, R v Chief Constable of the North Wales Police ex p AB [1999] QB 396, 416 and 429 (per Buxton J in the Divisional Court and Lord Woolf MR in the Court of Appeal, respectively), and, in Strasbourg, Segerstedt-Wiberg v Sweden Application No 62332/00, 6 June 2006, para 72, and Cemalettin Canli v Turkey, Application No 22427/04, 18 November 2008, para 33. Where the information, or a substantial part of the information, released in the ECRC is not in the public domain, as will very often be the position in relation to information falling within section 115(6)(a)(ii) and (7), the case for Article 8 engagement, as I see it, is self-evidently even stronger – see Leander v Sweden (1987) 9 EHRR 433, para 48, and Rotaru v Romania, Application no 28341/95, 8 BHRC 449 4 May 2000, para 43. 72. In the present case, as Lord Hope has explained in para 28, the information contained in the ECRC pursuant to section 115(6)(a)(ii) and (7), in so far as it related to the appellant (as opposed to her son), was not publicly available and was not even based on events which had taken place in public. Accordingly, for this reason as well, it appears to me that, subject to any other argument raised to the contrary, article 8 is engaged in this case. … 75. Part V of the 1997 Act has the unexceptionable aim of protecting vulnerable people (for present purposes children, but also, in certain circumstances, vulnerable adults), from being harmed by those working with them. It does so by requiring relevant information available to the police, about an applicant for a post involving responsibility for such vulnerable people, to be vouchsafed in an ECRC to the prospective employer. It is then for that employer to decide whether the information is relevant, and, if so, whether it justifies refusing to employ the applicant. As already mentioned, however, it seems to me realistic to assume that, in the majority of cases, it is likely that an adverse ECRC, i.e. one falling within section 115(6)(a), will represent something close to a killer blow to the hopes of a person who aspires to any post which falls within the scope of the section. Further, the vouchsafing of the information in an adverse ECRC will of itself normally (and where, as here, it is pursuant to section 115(6)(a)(ii), almost inevitably) impact on the applicant’s private life. 76. Given that, in relation to children-related posts, the section is limited to those seeking employment involving “regular..” responsibility for young people, I am prepared to proceed on the basis that there is nothing objectionable in the requirement that an ECRC must contain the information referred to in section 115(6)(a)(i), as expanded by the definition of “relevant matter” in section 113(5), even though it may on occasions be rather harsh on the applicant concerned. As Lord Woolf MR said in R(X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65, para 20, Parliament “must … be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so …”

“51. The interrelationship between these measures and the notification requirements is obvious. In the first place, the same criteria often apply to determine those who are subject to the notification requirements as apply to determine those who are potentially subject to the various methods of management and supervision. In the second place, notification requirements are important in that they assist the responsible authorities to keep tabs on those whom they are supervising and managing. This case turns, however, on one critical issue. If some of those who are subject to lifetime notification requirements no longer pose any significant risk of committing further sexual offences and it is possible for them to demonstrate that this is the case, there is no point in subjecting them to supervision or management or to the interference with their article 8 rights involved in visits to their local police stations in order to provide information about their places of residence and their travel plans. Indeed subjecting them to these requirements can only impose an unnecessary and unproductive burden on the responsible authorities. We were informed that there are now some 24,000 ex-offenders subject to notification requirements and this number will inevitably grow.”

“56. No evidence has been placed before this court or the courts below that demonstrate that it is not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who pose no significant risk of re-offending. It is equally true that no evidence has been adduced that demonstrates that this is possible. This may well be because the necessary research has not been carried out to enable firm conclusions to be drawn on this topic. If uncertainty exists can this render proportionate the imposition of notification requirements for life without review under the precautionary principle? I do not believe that it can. 57. I have referred earlier to a number of situations in which the degree of risk of re-offending has to be assessed in relation to sexual offenders. I think that it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified. As the courts below have observed, it is open to the legislature to impose an appropriately high threshold for review. Registration systems for sexual offenders are not uncommon in other jurisdictions. Those acting for the first respondent have drawn attention to registration requirements for sexual offenders in France, Ireland, the seven Australian States, Canada, South Africa and the United States. Almost all of these have provisions for review. This does not suggest that the review exercise is not practicable.”

“The Criminal Records Review will examine whether the criminal records regime strikes the right balance between respecting civil liberties and protecting the public. It is expected to make proposals to scale back the use of systems involving criminal records to commonsense levels.”

“There is a reasoned argument that, in many cases, the disclosure of conviction information that is both minor and disproportionate places an unnecessary burden on the lives of individuals. This is particularly so, where the conviction became spent many years earlier and the individual poses no significant public protection risk to children or vulnerable adults (for example, a shoplifting offence from 27 years ago).”

“22. Deciding which offences are “minor”, and should be filtered out, is no easy task. Just picking out some offences which are self-evidently at the minor end of a scale of seriousness might be relatively straightforward, but there will be others, not chosen, which in some people’s view at least are equally minor. That implies the need for a comprehensive classification of all offences as minor or not, which would be an extremely time-consuming undertaking, and more so if any intermediate categories were adopted. 23. There are good arguments for a relationship between age and seriousness in deciding what to filter. For example, minor offences could be weeded out after 5 years and intermediate offences after 10 years, but that adds another layer of complexity. 24. To avoid the difficulties associated with categorising each offence type individually, disposal rather than offence could be used as the main factor determining filtering. For example, all cautions could be filtered after 3 years, fines after 5 years, sentences of up to 3 years after 7 years etc. One of the attractions of this is that conceptually it is closer to the sentence-based approach taken in the broader ROA regime. However, it contains serious risks of filtering out specific instances which are clearly appropriate for disclosure. For example, there are instances where violent and sexual offences attract relatively low sentences or even where they are dealt with by way of caution. One antidote to this, would be to exclude certain offences (say those with a violent or sexual element) from ever being filtered. But again there is a problem of complexity. The number of offences in those categories is very large and they would all need to be classified. 25. Some argue that filtering (like the broader ROA regime) should take account of “clear periods”

“(3) Where a question seeking information with respect to a person’s previous cautions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority – (a) the question shall be treated as not relating to spent cautions or to any ancillary circumstances, and the answer may be framed accordingly; and (b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent caution or any ancillary circumstances in his answer to the question. (4) Any obligation imposed on any person by any rule of law or by the provisions of any agreement or arrangement to disclose any matters to any other person shall not extend to requiring him to disclose a spent caution or any ancillary circumstances (whether the caution is his own or another’s). (5) A caution which has become spent or any ancillary circumstances, or any failure to disclose such a caution or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment.”

“106. It is clear that the words “the right to respect for … private … life” which appear in Article 8 require not only that the State refrain from interfering with private life but also entail certain positive obligations on the State to ensure effective enjoyment of this right by those within its jurisdiction (see Marckx v Belgium, 13 June 1979, paragraph 31, Series A no. 31). Such an obligation may require the adoption of positive measures designed to secure effective respect for private life even in the sphere of the relations of individuals between themselves (see Von Hannover v Germany, no. 59320/00, paragraph 57, ECHR 2004-VI; and Stubbings and Others v the United Kingdom, 22 October 1996, paragraphs 61-62, Reports of Judgments and Decisions 1996-IV). 107. The Court emphasises the importance of a prudent approach to the State’s positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to secure its respect (Karakó v Hungary, no. 39311/05, paragraph 19, 28 April 2009). The choice of measures designed to secure compliance with that obligation in the sphere of the relations of individuals between themselves in principle falls within the Contracting States’ margin of appreciation (see, inter alia, X and Y v the Netherlands, 26 March 1985, paragraph 24, Series A no. 91; and Odièvre v France [GC], no. 42326/98, paragraph 46, ECHR 2003-III). However, this discretion goes hand in hand with European supervision (see, mutatis mutandis, Observer and Guardian v the United Kingdom, 26 November 1991, paragraph 59(c), Series A no. 216; and Lindon, Otchakovsky-Laurens and July v France [GC], nos. 21279/02 and 36448/02, paragraph 45, ECHR 2007-XI). 108. The Court recalls that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be accorded to the State in a case in which Article 8 of the Convention is engaged. First, the Court reiterates that the notion of “respect” in Article 8 is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: bearing in mind the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case (see Sheffield and Horsham v the United Kingdom, 30 July 1998, paragraph 52, Reports 1998-V). Thus Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Handyside v the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, paragraph 48; Abdulaziz Cabales and Balkandali v the United Kingdom, 28 May 1985, paragraph 67, Series A no. 94; Hatton and Others v the United Kingdom [GS], no. 36022/97, paragraph 97, ECHR 2003-VIII; and Armonienè, cited above, paragraph 38). In this regard, the Court recalls that by reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position that the international judge to give an opinion on how best to secure the right to respect for private life within the domestic legal order (see, mutatis mutandis, Handyside, cited above, paragraph 48; A, B and C v Ireland [GC], no. 25579/05, paragraph 232, 16 December 2010; and MGN Limited v the United Kingdom, no. 39401/04, paragraph 142, 18 January 2011). 109. Second, the nature of the activities involved affects the scope of the margin of appreciation. The Court has previously noted that a serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see Christine Goodwin v the United Kingdom [GC], no. 28957/95, paragraph 77, ECHR 2002-VI). Thus, in cases concerning Article 8, where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State is correspondingly narrowed (see Evans v the United Kingdom [GC], no. 6339/05, paragraph 77, ECHR 2007-IV, and A, B and C v Ireland [GC], cited above, paragraph 232). The same is true where the activities at stake involve a most intimate aspect of private life (see, mutatis mutandis, Dudgeon v the United Kingdom, 22 October 1981, paragraph 52, Series A no. 45; and A.D.T. v the United Kingdom, no 35765/97, paragraph 37, ECHR 2000-IX). 110. Third, the existence or absence of a consensus across the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, is also relevant to the extent of the margin of appreciation: where no consensus exists, the margin of appreciation afforded to States is generally a wide one (see Evans, cited above, paragraph 77; X, Y and Z v the United Kingdom [GC], no. 44362/04, paragraph 78, ECHR 2007-XIII). Similarly, any standards set out in applicable international instruments and reports are relevant to the interpretation of the guarantees of the Convention and in particular to the identification of any common European standard in the field (see Tanǎse v Moldova [GC], no. 7/08, paragraph 176, ECHR 2010-…). 111. Finally, in cases where measures which an applicant claims are required pursuant to positive obligations under Article 8 would have an impact on freedom of expression, regard must be had to the fair balance that has to be struck between the competing rights and interests arising under Article 8 and Article 10 (see MGN Limited, cited above, paragraph 142), rights which merit, in principle, equal respect (Hachette Filipacchi Associé (ICI PARIS) v France, no. 12268/03, paragraph 41, 23 July 2009; compare and contrast Sunday Times v the United Kingdom (no. 1), 26 April 1979, paragraph 65, Series A no. 30).”