“Right to respect for private and family life (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“The expression ‘in accordance with the law’, within the meaning of article 8.2, requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law.”
“A norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”
“The applicants further contended that the law itself must provide safeguards against abuse. The Government recognised that the correspondence control system must itself be subject to Page 12 control and the court finds it evident that some form of safeguards must exist. One of the principles underlying the Convention is the rule of law, which implies that an interference by the authorities with an individual’s rights should be subject to effective control. This is especially so where, as in the present case, the law bestows on the executive wide discretionary powers, the application whereof is a matter of practice which is susceptible to modification but not to any Parliamentary scrutiny.”
“The court would reiterate its opinion that the phrase ‘in accordance with the law’ does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention. The phrase thus implies - and this follows from the object and purpose of article 8 - that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph (1). Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident. … the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public Page 13 authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.”
“The degree of precision required of the ‘law’ in this connection will depend upon the particular subject matter. Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.”
“there would appear to be no legal rules concerning the scope and manner of exercise of the discretion enjoyed by the public authorities. Consequently, although lawful in terms of domestic law, the interference resulting from the existence of the practice in question was not ‘in accordance with the law’, within the meaning of article 8(2).”
“35. Above all, the system does not for the time being afford adequate safeguards against various possible abuses. For example, the categories of people liable to have their telephones tapped by judicial order and the nature of the offences which may give rise to such an order are nowhere defined. Nothing obliges a judge to set a limit on the duration of telephone tapping. Similarly unspecified are the procedure for drawing up the summary reports containing intercepted conversations; the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge (who can hardly verify the number and length of the original tapes on the spot) and by the defence; and the circumstances in which recordings may or must be erased or the tapes be destroyed, in particular where an accused has been discharged by an investigating judge or acquitted by a court. The information provided by the Government on these various points shows at best the existence Page 15 of a practice, but a practice lacking the necessary regulatory control in the absence of legislation or case law. 36. In short, French law, written and unwritten, does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. This was truer still at the material time, so that Mr Kruslin did not enjoy the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (see the Malone judgment previously cited, Series A no 82, p 36, para 79). There has therefore been a breach ofarticle 8 of the Convention .”
“For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of domestic legislation - which cannot in any case provide for every eventuality - depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed.”
“The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of Page 19 discretion conferred on the competent authorities and the manner of its exercise.”
“the greater the scope of the recording system, and thus the greater the amount and sensitivity of data held and available for disclosure, the more important the content of the safeguards to be applied at the various crucial stages in the subsequent processing of the data.”
“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.”
“94. As the court has recalled the expression ‘in accordance with the law’ not only requires the impugned measure to have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope and discretion conferred on the competent authorities and the manner of its exercise (see, among other authorities, MM v United Kingdom, no 24029/07, para 193,13 November 2012 with further references).”
“The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality.”
‘It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated.’
“in order for the interference to be ‘in accordance with the law’, there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined.”
“106. … It is recalled that a state can, consistently with the Convention, adopt general measures which apply to predefined situations regardless of the individual facts of each case even if this might result in individual hard cases … 107. The necessity for a general measure has been examined by the court in a variety of contexts such as economic and social policy and welfare and pensions. It has also been examined in the context of electoral laws; prisoner voting; artificial insemination for prisoners; the destruction of frozen embryos; and assisted suicide; as well as in the context of a prohibition on religious advertising. 108. It emerges from that case law that, in order to determine the proportionality of a general measure, the court must primarily assess the legislative choices underlying it. The quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation. It is also relevant to take into account the risk of abuse if a general measure were to be relaxed, that being a risk which is primarily for the state to assess. A general measure has been found to be a more feasible means of achieving the legitimate aim than a provision allowing a case-by-case examination, when the latter would give rise to a risk of significant uncertainty, of litigation, expense and delay as well as of discrimination and arbitrariness. The application of the general measure to the facts of the case remains, however, Page 30 illustrative of its impact in practice and is thus material to its proportionality. 109. It follows that the more convincing the general justifications for the general measure are, the less importance the court will attach to its impact in the particular case … 110. The central question as regards such measures is not, as the applicant suggested, whether less restrictive rules should have been adopted or, indeed, whether the state could prove that, without the prohibition, the legitimate aim would not be achieved. Rather the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it.”
“While the applicant criticised the national rules on consent for the fact that they could not be disapplied in any circumstances, the court does not find that the absolute nature of the law is, in itself, necessarily inconsistent with article 8. Respect for human dignity and free will, as well as a desire to ensure a fair balance between the parties to IVF treatment, underlay the legislature’s decision to enact provisions permitting of no exception to ensure that every person donating gametes for the purpose of IVF treatment would know in advance that no use could be made of his or her genetic material without his or her continuing consent. In addition to the principle at stake, the absolute nature of the rule served to promote legal certainty and to avoid the problems of arbitrariness and inconsistency inherent in weighing, on a case by case basis, what the Court of Appeal described as ‘entirely incommensurable’ interests. In the courts view, these general interests pursued by the legislation are legitimate and consistent with article 8.”
“On1 April 2008 , a statutory scheme for disclosure of criminal record information had entered into force in Northern Ireland. In April 2014, shortly after the respondent applied to the Trust, this statutory scheme was amended in light of changes to the same scheme in England and Wales. Under the scheme, AccessNI, a branch within the appellant Department, is responsible for carrying out checks on criminal records and police information on individuals who wish to work in certain types of jobs to enable employers to make safer recruitment decisions. The checks are carried out underPart V of the Police Act 1997 and AccessNI will then produce a Disclosure Certificate. There are three levels of check: basic, standard and enhanced. Enhanced checks, required for those working closely with unsupervised children and vulnerable adults, make disclosure of the full criminal history including spent and unspent convictions (subject to the ‘filtering scheme’ created by the 2014 statutory reform).”
“The Group felt that any definition of minor should be set by the Government and [be] subject to a full consultation process. However, the following small number of [conviction] types are provided as working examples of what might constitute a minor offence (subject, of course to further debate and consultation): • Drunk and disorderly • Offence against property; • Failing to report an accident.”
“… all cautions and convictions for serious violent and sexual offences and for certain other offences specified in the orders, such as those directly relevant to the safeguarding of vulnerable groups including children, will continue to be disclosed, as will all convictions resulting in a custodial sentence. … For all other offences, the orders provide for the following filtering rules to be applied: cautions. and equivalents, administered to a young offender will not be disclosed after a period of two years; adult cautions will not be disclosed after a Page 58 period of six years; a conviction received as a young offender resulting in a non-custodial sentence will not be disclosed after a period of five and a half years; and an adult conviction resulting in a non-custodial sentence will not be disclosed after a period of 11 years; but all convictions will continue to be disclosed where an individual has more than one conviction recorded.”
“37. The task for the SSHD and the SSJ was to come up with a workable scheme, which was sufficiently nuanced and also sufficiently certain. The scheme had to be readily understood and certain so that individuals would know what was protected from disclosure, and so that the DBS system could be changed, and certificates could still be issued automatically. Any system has, of course, to have bright lines and it is not workable to have any discretion in relation to individual eases, or different disclosure criteria for different occupations, not least because of the sheer number of applications. I understand that the DBS system works by automatically recognising offence codes and other information provided from the PNC. The automated solution does not provide any mechanism to identify the specific circumstances of individual offences and this would require significant manual intervention. 38. In relation to the amount of time which has to elapse before a caution or conviction may be protected from disclosure, we had regard to the Court of Appeal’s judgment. The Court of Appeal found in one case that it was disproportionate to disclose a caution received as an adult after a period of seven years, although it did not specify what might be a reasonable period. The filtering policy therefore allows an adult caution (for a non-specified offence) to be protected from disclosure after a period of six years and after two years for a caution received as a young offender. For convictions we added Page 59 six years to the then longest rehabilitation period for a noncustodial disposal which was five years, giving us a period of 11 years which had to elapse from the date of conviction before it could be protected from disclosure. This means that, as with a caution, a period of six years has to elapse after the disposal is spent before it can be filtered out. The period was halved for convictions received as a young offender in line with the general policy on rehabilitation periods.”
“The revised scheme … no longer requires disclosure of every spent conviction and caution but, from29 May 2013 , requires disclosure only in the following circumstances. Any current conviction or caution, currency depending upon the period which has elapsed since the date of the conviction or caution and which differs, as a consequence of the operation of the 1974 and 1997 Acts, depending on whether, at the time of the conviction or caution, the person concerned was under 18 years of age or aged 18 or over: see the definition of ‘relevant matter’ in section 113A(6)(a)(iii) and (d), a current conviction in section 113A(6E)(c) and a current caution in section 113A(6E)(d) of the 1997 Act and articles 2A(l) and 2A(2) of the 1975 Order. Any spent conviction or caution in respect of certain specified offences (including a number of identified offences but, of more significance, all offences specified in Schedule 15 [to] theCriminal Justice Act 2003 which includes, for example, assault occasioning actual bodily harm): see the definition of ‘relevant matter’ in section 113A(6)(a)(i) and (c) and the list of specified offences in section 113A(6D) of the 1997 Act and articles 2A(l), (2) and (3)(a) read together with article 2A(5) of the 1975 Order (‘the serious offence rule’). Any spent conviction in respect of which a custodial sentence or sentence of service detention was imposed: see the definition of ‘relevant matter’ in section 113A(6)(a)(ii) of the 1997 Act, of conviction in section 113A(6E)(a), caution in section Page 60 113A(6E)(b) and custodial sentence and sentence of service detention in section 113A(6E)(e) and articles 2A(2), 2A(3)(b) and 2A(4) of the 1975 Order. Any spent conviction where the person has more than one conviction: see the definition of relevant matter in section 113A(6)(b) of the 1997 Act and articles 2A(2) and 2A(3)(c) of the 1975 Order (‘the multiple conviction rule’).”
“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’.”
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“As I have explained, the court’s focus tends to be on whether there were adequate safeguards against abuse, since the existence of such safeguards should ensure that the national authorities have addressed the issue of the necessity for the interference in a manner which is capable of satisfying the requirements of the Convention. In other words, in order for Page 66 the interference to be ‘in accordance with the law’, there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined. Whether the interference in a given case was in fact proportionate is a separate question.”
“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?”
“… The disclosure regime was introduced in order to protect children and vulnerable adults. That objective is not furthered by the indiscriminate disclosure of all convictions and cautions Page 70 to a potential employer, regardless of the circumstances. A blanket requirement of disclosure is inimical to the 1974 Act and the important rehabilitative aims of that legislation. Disclosure that is irrelevant (or at best of marginal relevance) is ‘counter to the interests of re-integrating ex-offenders into society so that they can lead positive and law-abiding lives’: see Mrs Mason’s Phase 2 report, at p 19 …”
“1. I agree with the outcome of this case, namely that there has been a violation of the applicant’s rights underarticle 8 of the Convention . The majority in the Chamber have reached this conclusion following an analysis as to whether the impugned interference was ‘necessary’ within the meaning of article 8.2 of the Convention. I do not have any major objections to the essence of that analysis as such. The misgivings I have are in relation to the preceding analysis of whether the interference with the applicant’s rights under article 8 was ‘in accordance with the law’. On this point, the majority do identify a number of concerns but consider that it is not necessary in the present case to reach any firm conclusion as to whether the requirement of lawfulness has been met. Regrettably, I find the approach adopted in this respect lacking in firmness as well as in consistency with existing case law. 2. According to the court’s well-established case law, the phrase ‘in accordance with the law’ in article 8.2 of the Convention requires not only that the impugned measure must have a basis in domestic law but that it must also be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and is inherent in the object and purpose of article 8. Thus, the requirement of lawfulness also refers to the quality of the law in question. This entails that the law should be adequately accessible and foreseeable as to its effects, that is to say formulated with sufficient precision to enable any individual - if need be with appropriate advice - to regulate his conduct (see, for instance, S and Marper v United Kingdom [GC], nos 30562/04 and 30566/04, para 95, ECHR 2008) 3. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and, accordingly, indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of the domestic law - which cannot provide for every eventuality - depends to a considerable degree on the context and content of the law in question, such as the field it is designed to cover (ibid para 96). Page 74 4. In the field of data protection, the court has considered it essential for the applicable law to provide clear, detailed rules governing the scope and application of the relevant measures as well as sufficient guarantees against the risk of abuse and arbitrariness at each stage of the processing of personal data (see MM v United Kingdom, no 24029/07, para 195,13 November 2012 , and Surikov v Ukraine, no 42788/06, para 74,26 January 2017 ; both with further references). These are indeed crucial requirements …”