A
Human rights – European Convention on Human Rights – Article 8 – right to private
life – compatibility of criminal record disclosure requirements
R (T) v Chief Constable of Greater Manchester, Secretary of State for the Home
Department and Secretary of State for Justice [2013] EWCA Civ 25, [2013] 1 WLR
2515, [2013] 2 All ER 813
UKSC/2013/0048
B
IN THE SUPREME COURT OF THE UNITED KINGDOM
ON APPEAL FROM HER MAJESTY’S COURT OF APPEAL (ENGLAND)
B E T W E E N:
THE QUEEN (on the application of T)
Respondent
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-and(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT
(2) SECRETARY OF STATE FOR JUSTICE
Appellants
and
D
EQUALITY AND HUMAN RIGHTS COMMISSION
LIBERTY
FINANCIAL CONDUCT AUTHORITY
PRUDENTIAL REGULATION AUTHORITY
Interveners
E
CASE FOR THE EQUALITY AND HUMAN RIGHTS COMMISSION
(INTERVENER)
CONTENTS
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1.
Overview
Pages 1 - 5
2.
The Legislative Scheme
Pages 5 - 7
3.
The Commission’s Submissions
Concerning Article 8
Pages 7 - 25
(a) The nature of the interference under
Article 8(1)
Pages 7-15, [3.2]-[3.20]
(b) Non-conviction disposals given to children
Pages 15- 18, [3.21]-[3.29]
(c) Bright line rules and the flawed approach
of the Appellants
Pages 19 - 25, [3.30]-[3.44]
4.
Relief
Page 26
5.
Conclusion
Page 26
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1.
OVERVIEW
1.1
This is an appeal by the Secretary of State for the Home Department and the
Secretary of State for Justice (‘the Secretaries of State’ or ‘the Appellants’)
against an Order of the Court of Appeal (the Master of the Rolls, Richards and
Davis LJJ) dated 29th January 2013, in which it declared that:
(a)
The provisions of Part V of the Police Act 1997 (‘the 1997 Act’) are
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incompatible with Article 8, European Convention on Human Rights
(‘ECHR’), insofar as they require the disclosure of all convictions
and non-conviction disposals (cautions, warnings and reprimands)1
recorded on central records via certificates issued under Part V; and
(b)
The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975
(SI 1975/1023) (‘ROA Order’) is incompatible with Article 8 ECHR
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and ultra vires, for the reasons set out in the Court of Appeal’s
judgment of the same date.
Linked to the Secretaries of State’s appeal in T is that of JB; she also secured
an Order, dated 29th January 2013, regarding the incompatibility of the
provisions of Part V of the 1997 Act with Article 8. She did not in the Court
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of Appeal, and does not before this Court, advance a case regarding the
Order.2
1.2
The Equality and Human Rights Commission (‘the Commission’) is grateful
for the opportunity to intervene in this appeal in T’s case,3 pursuant to Rule
26, Supreme Court Rules 2009.
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The Commission is the statutory non-
departmental body for England, Wales and (in respect of some of its
functions) Scotland, charged with monitoring the implementation of, and
compliance with, equality and human rights law. It has a unique statutory role
in promoting human rights norms and equality of opportunity, and it has a
specific statutory power to intervene in legal proceedings relevant to its
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functions. It has a strong interest, and established expertise, in informational
privacy issues arising under Article 8 ECHR. It has commissioned
independent research on ‘information privacy’ and human rights, to explore
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1
2
3
2
T received two warnings when aged 11; JB received a caution. However the term
‘caution’ has been used generically by the Court of Appeal and the parties to refer to
other non-conviction disposals (warnings and reprimands), and the Commission
adopts the same approach.
Case for JB, p.2D, [4].
The Commission’s intervention is in the appeal concerning T’s case only. However,
although the Commission has not intervened in the appeal concerning JB, reference is
made in this Case to JB where relevant to the legal principles concerning T.
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issues surrounding the concept of information privacy and develop the
Commission’s expertise and understanding in this area of work.4
1.3
It is the Commission’s case that:
(i)
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The Court of Appeal reached the clear conclusion that the provisions
of Part V of the 1997 Act interfered with T’s rights pursuant to
Article 8(1), and that such interference was not justified pursuant to
Article 8(2).
It was right to do so, and this appeal should be
dismissed;
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(ii)
In respect of Article 8(1), the requirement in s. 113B of the 1997 Act
that all convictions and non-conviction disposals – even if irrelevant,
and regardless of the circumstances – be automatically disclosed on
Criminal Record Certificates (‘CRCs’) or Enhanced Criminal
Record
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Certificates
(‘ECRCs’)
necessarily
constitutes
an
interference, and not only for the limited reason accepted by the
Appellants.5 They belittle the nature of the Article 8 interference by
characterising it as arising only in the event that an individual,
following disclosure, fails to secure or loses a post of employment,
and even then they consider that there would only be an interference
if an unspecified “high threshold” is surpassed6;
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(iii)
There is longstanding judicial recognition of the special principles
applicable (under domestic, Convention and international law) when
considering those convicted of offences as children.
When
considering non-conviction disposals (such as cautions) given to
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children, and their subsequent recording, retention and disclosure,
these principles have particular resonance, as the Court of Appeal
recognised;
(iv)
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In respect of Article 8(2), the blanket, general, indiscriminate nature
of this requirement is not ‘necessary in a democratic society’ as
required by Article 8(2), as it fails to satisfy the strict requirements
of proportionality and is not the least restrictive means of achieving
4
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6
Professor Charles Raab, University of Edinburgh, and Associate Professor Benjamin
Goold, University of British Columbia, Protecting Information Privacy (2011:
Equality and Human Rights Commission Research Report 69).
Appellants’ Case at p. 26D-E, [34].
Appellants’ Case, [38].
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the legitimate objective of protecting vulnerable adults and children.
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The proportionality of ‘bright line rules’ which admit of no
discretion must be subjected to strict scrutiny; the rule under Part V
of the 1997 Act is not justified when subjected to such analysis;
(v)
The Court of Appeal’s reasoning did not rest upon the case of MM v.
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UK [2012] ECHR 24029/12, although it considered that the
European Court of Human Right’s findings and concerns regarding
the statutory regime bolstered its conclusion of disproportionality
(see [47] and [53] in particular);
(vi)
Much of the Appellants’ complaint in their Case concerns the relief
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granted rather than the Court of Appeal’s findings in respect of
Article 8 ECHR. This is particularly apparent from their written
Case at [4] (concerning “the breadth of the Court of Appeal’s
ruling” and its consequences) although it underpins much of their
Case;
(vii)
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The relief granted by the Court of Appeal was entirely appropriate in
the circumstances, given the range of mechanisms available to the
Appellants to address the incompatibility identified in its judgment.
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1.4
The Commission is mindful of the need for interveners to ‘add value,’ and not
to make submissions which merely duplicate those already made by other
parties. The Commission is in broad agreement with the submissions made to
date in T’s and JB’s Cases and does not address areas already fully explored
by the Respondents in their written Cases. However, given the statutory role
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of the Commission, its support of T’s position is indicative of the broader
human rights and equality implications which arise as a result of these
appeals. The Commission considers that this appeals raises significant wider
concerns, reaching beyond the particular circumstances of T:
1.4.1 It raises important issues concerning blanket policies of mandatory
State disclosure of adverse historical information, warnings and
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convictions concerning individuals, without individually tailored,
proportionate decision-making, taking account of their individual
circumstances;
1.4.2 It also has potentially far wider ramifications for Article 8 ECHR cases
generally, outside this particular context, and indeed for other qualified
4
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ECHR rights, given the submissions made by the Appellants to the
effect that legislation which creates clear “bright lines” which are easy
to understand and apply, even where their application causes “harsh”
or “anomalous” effects in some cases, should be upheld as
proportionate.
This approach would allow for a finding of
proportionality under Article 8(2) in an individual case, based on
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general considerations, and despite apparent and acknowledged
disproportionality for the affected individual.
1.5
Against that backdrop, the Commission’s focus in its Case is upon three
specific issues arising in respect of Article 8 (addressed at Part 3 of this Case,
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below):
(a)
The nature of the interference under Article 8(1);
(b)
Non-conviction disposals given to children;
(c)
Bright line rules and the flawed approach of the Appellants.
The Commission also briefly addresses the legislative scheme at Part 2 below,
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including a necessary correction of a factual error regarding the scheme,
which was made in the Secretary of State for the Home Department’s
(‘SSHD’) submissions in the Court of Appeal and persists in the Appellants’
Case before this Court.
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2.
THE LEGISLATIVE SCHEME
2.1
The legislative scheme (as it stood when considered by the Court of Appeal) is
detailed in the Appellants’ and Respondents’ written cases, and not repeated
here. The Commission draws attention to one specific feature, however. The
Secretary of State is empowered to amend the statutory definition of “every
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relevant matter” and “central records” by Order laid before Parliament under
the affirmative resolution procedure (s. 113A(7) and (8)). The Appellants’
characterisation, at [3] of their Case, of Parliament having “set at the heart of
the system of criminal records checks” an “important principle... namely that
employers should be provided with full information about individuals
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applying for certain positions in order to inform their recruitment decisions”
(emphasis added) is not correct. Parliament referred in the primary statute to
every relevant matter, not all matters or full information, regardless of
relevance; and the scheme permits the Secretary of State to alter the definition.
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2.2
The Appellants submit that the statutory scheme has “its own in-built filter
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mechanism”7 and that “minor offences” are not recorded and will not be
disclosed. They rely upon this claim to support their contention that the
scheme is proportionate. This claim does not, however, stand up to scrutiny.
It is correct that CRCs and ECRCs do not generally contain details of nonrecordable offences. This is because s. 113B(3)(a) requires ECRCs to contain
details of “every relevant matter relating to the applicant which is recorded in
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central records,” and “central records” are in turn defined in s. 113A(6) as
“such records of convictions and cautions held for the use of police forces
generally as may be prescribed”. The prescribed record in question is the
Police National Computer (‘PNC’): Police Act 1997 (Criminal Records)
Regulations 2002, SI 2002/233, Reg. 9. The PNC contains details of all
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recordable offences. It does not generally contain details of non-recordable
offences, where the details are held by another body, such as, for example,
“non-recordable motoring offences, such as speeding, held by the DVLA,”
although it may in particular cases (Sunita Mason, Phase 2, pp. 15-16).
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2.3
The Appellants on a number of occasions equate non-recordable offences with
“minor” or “the most trivial” offences, and by implication recordable
offences are necessarily considered more serious. The Commission does not
accept this as a general characterisation. Recordable offences are those which
are imprisonable,
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“plus a sub-set of non-imprisonable offences
that have been designated as recordable under
regulations (i.e. statutory instruments under
policing legislation). This additional set of
specified offences has grown over time and is
now substantial” (Sunita Mason, Phase 2, at p.
16).
2.4
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The dividing line between recordable and non-recordable offences is not based
upon public protection or gravity, and it is not a coherent or consistent
distinction.
Mrs. Mason provides contrasting examples of certain non-
recordable offences, and certain recordable offences.
The non-recordable
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offences she lists include driving without insurance (p. 16), reproducing
British currency notes (p. 16), “[stealing] personal data and [selling] this for
profit” (p. 17, referring to the Data Protection Act 1998, s. 55), and causing
unnecessary suffering to animals (p. 18, referring to the Animal Welfare Act
2006, s. 4). In contrast, the recordable offences she lists include taking a pedal
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6
Case at p. 48G-49A, [80(4)].
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cycle without consent (Theft Act 1968, s. 12). The Appellants’ suggestion
that there is an in-built filter mechanism in the scheme, whereby minor
offences are not disclosed but more serious offences are, is simply not borne
out.
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3.
THE COMMISSION’S SUBMISSIONS CONCERNING ARTICLE 8
3.1
In summary, the Commission submits that:

Article 8(1): The requirement in s. 113B of the 1997 Act that all
convictions and non-conviction disposals be automatically disclosed on a
CRC or an ECRC necessarily constitutes an interference with Article 8(1)
ECHR;
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
Article 8(2): The blanket, general, indiscriminate nature of this
requirement is not ‘necessary in a democratic society’ as required by
Article 8(2), as it fails to satisfy the strict requirements of proportionality
and is not the least restrictive means of achieving the legitimate objective
of protecting vulnerable adults and children.
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As indicated at the outset of its Case, the Commission focuses upon three
specific areas in support of these general submissions, which are addressed in
turn below:
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3.2
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(a)
The nature of the interference under Article 8(1);
(b)
Non-conviction disposals given to children;
(c)
Bright line rules and the flawed approach of the Appellants.
(a)
Article 8(1): The Nature of the Interference
The scheme under the 1997 Act involved the automatic, blanket disclosure of
all convictions or non-conviction disposals recorded on the PNC, regardless of
whether they have any relevance whatsoever to public protection, the
circumstances of the conduct or the disposal itself, the passage of time, the age
of the individual, seriousness, whether they are spent or unspent, or any other
factors.
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3.3
At first instance even the applicability of Article 8(1) was disputed by the
Appellants.
They disputed whether there was any interference with the
Appellant’s right to private life. There is now however a limited concession,
as the Appellants acknowledge that the statutory provisions are “capable of
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causing an interference... in certain cases” ([7(1)] and [37]). However they
consider the interference may only arise if disclosure of the caution leads to
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the subject of the ECRC being excluded from employment, thereby hampering
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their ability to develop relationships with others. They describe this as a
“high threshold which is not surpassed merely because an individual is
unable to secure a particular job or type of job” and submit that this threshold
was not met for either T or JB. This is on the basis that T had made “no
recent application for employment” and was “able to complete college
course” (and JB had only a “failure to obtain employment via a single
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agency,” at [38]).
3.4
The Commission submits that the scheme under Part V of the 1997 Act
plainly constituted an interference with Article 8(1), and that there has been an
interference with T’s prima facie Article 8(1) rights. The applicability of
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Article 8(1) is not limited to the narrow circumstances acknowledged by the
Appellants, i.e. the ‘effect-based’ analysis regarding whether or not an
individual has, as a result of disclosure, been excluded from employment such
as to meet the undefined “high threshold” referred to at [38]. Sidabras v.
Lithuania (2006) 42 EHRR 6 and Campagnano v. Italy (2009) 48 EHRR 43
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do not support the Appellants’ approach. Both cases did concern what the
European Court of Human Rights (‘ECtHR’) described as “far-reaching”
measures (Sidabras at [47], Campagnano at [53]) but neither purported to be
setting a high threshold requiring similarly extensive effects before Article 8
would apply. On the contrary, the ECtHR in Campagnano recognised that the
facts were relatively extreme and so “undoubtedly” fell within Article 8(1) (at
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[54] of the judgment).
3.5
The ECtHR has consistently held that it is neither possible nor necessary to
attempt an exhaustive definition of the notion of ‘private life’ in Article 8(1),
but the concept should be construed broadly: Niemitz v. Germany (1993) 16
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EHRR 97, para. 29; Halford v. UK (1997) 24 EHRR 52; S and Marper v. UK
(2008) 48 EHRR 1169, [66] (Grand Chamber, ‘GC’).
3.6
The ECtHR case law on Article 8 has identified a range of different aspects of
private life which attract protection, four of which are in play in the present
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appeal, in the Commission’s submission (and two of which were recognised
and accepted by the Court of Appeal, at [31]):
(i)
First, the retention and storing of the information in question in itself;
(ii)
Second, the release or disclosure of sensitive information about the
individual that is stored on public records, despite the individual
wishing to keep it private (recognised by the Court of Appeal);
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(iii)
Third, the potential impact upon employment prospects, in terms of
one’s ability to secure work in one’s chosen field (recognised by the
Court of Appeal);
(iv)
Fourth, the potential impact upon employment relations and one’s
interaction with one’s employer even if, post-disclosure, employment is
secured.
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3.7
However, the underpinning focus in each of these four aspects of private life
reflects the analysis of Professor Raymond Wacks,
“At the heart of the concern to protect “privacy” lies a
conception of the individual and his or her relationship
with society.”8
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3.8
Lord Hoffmann in Campbell v. MGN Ltd. [2004] 2 AC 457 emphasised at
[51] that, “the law now focuses upon the protection of human autonomy and
dignity – ‘the right to control the dissemination of information about one’s
private life and the right to the esteem and respect of other people’.” Both Sir
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Anthony Clarke MR, giving the judgment of the Court in Murray v. Big
Pictures (UK) Ltd. [2008] EWCA Civ 446, [31], and Laws LJ in Wood v.
Commissioner of Police for the Metropolis [2010] 1 WLR 123, [20] – [22],
derived considerable assistance from Lord Hoffmann’s description. Laws LJ
describes the heart of Article 8(1) as follows, at [20] – [22] (emphasis added):
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“The phrase ‘physical and psychological integrity’ of a
person... is with respect helpful. So is the person's
‘physical and social identity’... These expressions
reflect what seems to me to be the central value
protected by the right. I would describe it as the
personal autonomy of every individual...
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The notion of the personal autonomy of every
individual marches with the presumption of liberty
enjoyed in a free polity: a presumption which consists
in the principle that every interference with the freedom
of the individual stands in need of objective
justification. Applied to the myriad instances
recognised in the Article 8 jurisprudence, this
presumption means that, subject to [qualifications], an
individual's personal autonomy makes him – should
make him – master of all those facts about his own
identity, such as his name, health, sexuality, ethnicity,
his own image, of which the cases speak; and also of
the "zone of interaction"... between himself and
others. He is the presumed owner of these aspects of
his own self; his control of them can only be loosened,
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8
Raymond Wacks, Personal Information, Privacy and the Law (Clarendon Press,
London, 1993), p. 7.
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abrogated, if the State shows an objective justification
for doing so. This cluster of values, summarised as the
personal autonomy of every individual and taking
concrete form as a presumption against interference
with the individual's liberty, is a defining characteristic
of a free society. We therefore need to preserve it even
in little cases...”
3.9
In independent research recently undertaken for the Commission, the authors
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referred to a number of conceptions of privacy, including the notion of
‘informational self-determination’ (closely linked to Lord Hoffmann’s and
Laws LJ’s analysis above) and the concept of privacy as ‘an aspect of
personhood,’ closely linked to dignity and personal autonomy. 9 They also
drew upon broad themes, in case law and literature, concerning the value of
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privacy:
“Just as there is no agreed definition of privacy, there
are also many different but overlapping ways in which
privacy can be understood and justified. Privacy can,
for example, be seen as a good in itself – as essential to
our development as individuals, and bound up with
ideas of dignity, liberty, and ‘personhood’. In addition
to promoting these values, privacy can also be justified
on more instrumental grounds. Without a degree of
privacy, it can become very difficult for individuals to
maintain a distinction between their personal and
public lives, or to exercise other important social and
political rights, such as rights to freedom of religion,
freedom of association, and freedom of expression.”10
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3.10 In the Commission’s submission, the four different, but overlapping, aspects
of the right to private life summarised above at 3.6, and developed further
below, are all underpinned by the recognition of the importance of
informational self-determination and personal autonomy referred to in the
Commission’s research and the domestic and Strasbourg courts.
(i)
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Retention and Storage
3.11 First, regardless of any disclosure, the retention and storing of the information
in question in itself constitutes a prima facie interference with Article 8(1)
rights: Leander v. Sweden (1987) 9 EHRR 433, [48]. The subsequent use of
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the stored information has no bearing on that finding: Amann v. Switzerland
(2000) 30 EHRR 843, [69] (GC). This was reiterated in the GC’s judgment in
S and Marper, at [121]:
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10
10
Raab and Goold, Protecting Individual Privacy (Equality and Human Rights
Commission Research Report 69, 2011), pp. 15-18.
Ibid., p. 15.
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“... the mere retention and storing of personal data by
public authorities, however obtained, are to be
regarded as having direct impact on the private life
interest of an individual concerned, irrespective of
whether subsequent use is made of the data.”
3.12 In R (GC) v. Commissioner of Police for the Metropolis [2011] 1 WLR 1230
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the Supreme Court applied the ECtHR’s decision in S and Marper and held
the indefinite retention of the claimants’ data (fingerprints and DNA samples)
interfered with their rights under Article 8(1), and that interference was
unjustified.
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3.13 In S and Marper the GC of the ECtHR declined to distinguish between the
three different types of data under consideration (DNA profiles, cellular
samples and fingerprints) in determining whether there had been a prima facie
interference with Article 8(1) rights. It did however note that all three forms
are ‘personal data’ under both the Council of Europe Convention of 1981 for
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the protection of individuals with regard to automatic processing of personal
data (‘the Data Protection Convention’) and the Data Protection Act 1998
(‘DPA’) (at [68]). It cited in detail both the Data Protection Convention, at
[41], and Recommendation No. R (87) 15: Regulating the use of personal data
in the police sector (adopted 17th September 1987) at [42]. A similar approach
was adopted by the ECtHR in the MM case, at [188], as the information in
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question was both ‘personal data’ and ‘sensitive personal data’ within the
meaning of the DPA. It is clear that the data with which these appeals are
concerned must also fall within Article 8(1). It is afforded an even greater
degree of protection than that involved in S and Marper, as it constitutes
‘sensitive personal data’ (s. 2(g) and (h), DPA: “information as to... the
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commission or alleged commission by him of any offence” and “information
as to... any proceedings for any offence committed or alleged to have been
committed by him, the disposal of such proceedings of the sentence of any
court in such proceedings”). Article 6 of the Data Protection Convention also
refers to ‘special categories of data,’ including “personal data relating to
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criminal convictions.”
Information falling with the special categories in
Article 6, “may not be processed automatically unless domestic law provides
appropriate safeguards.” This is confirmed by MM (and the Appellants’
complaint regarding that case appears to focus upon the ECtHR’s approach to
Article 8(2), rather than its approach to Article 8(1)).
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(ii) Release or Disclosure of Sensitive Information
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3.14 Second, the release or disclosure of sensitive information about the individual
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that is stored on public records, despite the individual wishing to keep it
private, also amounts to a breach of Article 8(1): see e.g. R v. Chief Constable
of North Wales Police, ex parte AB [1999] QB 396 per Lord Bingham at 414,
Buxton J at 416, Lord Woolf at 429; R (L) v. Commissioner of Police for the
Metropolis [2010] 1 AC 410 (‘L’), per Lord Hope at [25], [27]; Leander v.
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Sweden (1987) 9 EHRR 433, [48]; Rotaru v. Romania (2000) 8 BHRC 449,
[43]; Segerstedt-Wiberg v. Sweden (2007) 44 EHRR 2, [72]. This aspect of
privacy concerns T’s right to informational self-determination – to be “master
of all those facts about his own identity... of which the cases speak”: per Laws
LJ in Wood at [21].
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3.15 The Appellants in these appeals submit that the Court of Appeal erred in its
finding (following Lord Hope in L) that “a caution takes place in private, so
that the administering of a caution is part of an individual’s private life from
the outset” (Court of Appeal judgment at [31]). However this did not form
part of the Court’s reasoning in relation to why Article 8(1) was engaged – it
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is not even mentioned in [32], where the Master of the Rolls explained why
there was a prima facie interference in T’s case, nor at [70] where JB’s
circumstances are considered. The Commission submits that, even if the
Appellants were to succeed on this specific issue, it is irrelevant to the Court
of Appeal’s correct conclusion that the disclosure of the information in
question in T’s case, and the risk of that disclosure, constituted an interference
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with his Article 8(1) rights.
3.16 The Appellants at [40] submit that the subject of a caution has no
“’reasonable expectation of privacy’ which is breached when a caution is
disclosed soon after it is received.” The reference to ‘soon’ is not explained,
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but appears to envisage that, even if not intrinsically private, a caution may
become part of an individual’s private life through the passage of time. This
is so in T’s case.
3.17 The Commission submits that the Appellants’ approach to the question of
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whether a caution is “intrinsically private” is flawed in a number of respects,
namely:
3.17.1
The Court of Appeal correctly recognised that non-conviction
disposals are in principle distinguishable from conviction disposals
(regardless of whether the Supreme Court agrees that the former are
intrinsically private and necessarily part of the individual’s private
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life from the outset) – cf the final sentence of the Appellants’ Case
at [40];
3.17.2
The Commission considers that the bare question of whether T had a
reasonable expectation of privacy when the warnings were
administered in 2002 is too simplistic and misleading in the context
of this case, as the cumulative effect of the processes involves long-
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term and possibly permanent State control over a sensitive aspect of
his past, which may permanently hamper his ability to secure
employment. The question of a ‘reasonable expectation of privacy’
was not applied or referred to by the GC of the ECtHR in S and
Marper, or by the ECtHR in MM. Further, the discussion in Wood,
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at [22] and [24], concerned case law in relation to the taking of a
photograph, rather than its retention/ storage/ subsequent use, a very
different context (Von Hannover/ Campbell/ Murray v. Big
Pictures). (However, if, contrary to these submissions, the Supreme
Court does consider that the question is whether T could be said to
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have had a reasonable expectation of privacy, it is submitted that he
did);
3.17.3
The Appellants refer at [39] to “the standard procedures prescribed
by SSHD” but do not detail the applicable standards in place at the
time that the cautions were administered to either T or JB. The
current standards for adults, ‘Simple Cautions for Adult Offenders,’
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are in force only since 14th November 2013, post-dating the Court of
Appeal’s judgment. As regards children (as T was a child when he
received his warnings), it is unclear which guidance was in place at
the time, as there was guidance in place from 2000,11 but there was a
change made in November 200212 (T received his warnings on an
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unspecified date in 2002: SFI at [2]). However it is clear from the
2002 guidance document that there were concerns regarding
inconsistency of application of the scheme across the country,13 and
this concern persisted and resulted in the issuing of a further circular
in 2006.14 In neither the 2000 nor the 2002 guidance is it made clear
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that the information will be retained permanently; on the contrary, at
para. 9.12 of the 2002 guidance it is stated that,
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14
Home Office, The Final Warning Scheme: Guidance for the Police (March 2000)
Home Office and Youth Justice Board, The Final Warning Scheme: Guidance for the
Police and Youth Offending Teams (November 2002).
Ibid., [1.10].
Home Office Circular 14/2006, The Final Warning Scheme (May 2006).
13
3.17.4
“In giving a final warning the officer should specify the
offence that has led to it and make clear that... a record of
the final warning will be kept by the police until the offender
is 18 years old or for five years, whichever is longer.”
The presence or otherwise of an Appropriate Adult cannot be a
A
significant factor given that the Appropriate Adult is also present
during, for example, the strip-searching of a child and a police
interview of a child. The role exists to protect the child’s interests
B
whilst in custody and cannot result in a conclusion that an act which
takes place in their presence is inherently public.
3.17.5
Similarly, a referral to the Youth Offending Team (‘YOT’) and a
YOT assessment cannot be determinative, as such referrals and
assessments take place throughout the process, prior to disposal; for
C
example, when a decision is made concerning bail of a child, prior
to conviction.
(iii) Potential impact upon employment prospects; ability to secure work in
one’s chosen field
D
3.18 Third, it is plain, as the Court of Appeal held, that the potential impact upon
T’s employment prospects lies within the scope of Article 8(1). Private life
“encompasses the right for an individual to form and develop relationships
with other human beings, including relationships of a professional or business
nature”: Campagnano at [53] citing C v. Belgium (2001) 37 EHRR 2 at [25].
Article 8 protects a right to personal development and the right to establish
E
and develop relationships with other human beings and the outside world, and
it does not exclude in principle activities of a professional or business nature.
As the ECtHR acknowledged in Campagnano, at [53], “it is, after all, in the
course of their working lives that the majority of people have a significant
opportunity of developing relationships with the outside world.” The Court of
F
Appeal approached this issue entirely correctly, and the Strasbourg
jurisprudence simply does not support the “high threshold” referred to by the
Appellants in their Case.
(iv) Potential impact upon relations with employers
3.19 There is a further aspect of the individual’s relationships with others which is
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of relevance, namely blanket disclosure of sensitive information from one’s
past, regardless of its relevance or the passage of time, to any and all potential
employers in one’s chosen field, on a permanent basis, even if this does not
result in a loss of employment. There is a potential impact upon employment
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14
A
relations and one’s interaction with one’s employer even if, post-disclosure,
employment is secured.
3.20 Automatic disclosure of adverse past information to a prospective employer,
whilst not amounting to an automatic exclusion, differs only from aspect (iii)
B
above in terms of degree – it still involves the release of information which
impacts upon the individual’s ability to develop relationships with others.
This plainly impacts upon his ‘zone of interaction’ with others (Von
Hannover, [50], and Wood, [21]), given the highly sensitive nature of the
information involved and the potential stigma associated with having been
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involved in criminal behaviour. It provides the prospective employer with
historical adverse information about the individual, which may be very
outdated, have no relevance to the individual’s current circumstances or the
role in question, and despite the fact that there may be no particular reason for
it to be disclosed (beyond the general application of a blanket rule). Even if
the individual secures the job, despite the employer learning of this
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information, the employer is then aware of the historical adverse information.
The distinction of degree between an automatic exclusion from employment
and the situation which arises here is a matter for consideration under Article
8(2), it is submitted, rather than a reason why Article 8(1) does not even
apply.
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(b) Non-Conviction Disposals given to Children
3.21 As regards T’s case, it is important to bear in mind that he was a child when
the warning was given, aged 11. The courts have regularly considered the
different principles at play when they are considering those convicted of
F
offences as children - recognising the more restricted level of responsibility
which a child can bear for their actions, in contrast to adults; and recognising
that, due to their youth, there is room for significant changes in maturity and
development. Whilst these cases have no direct application in the present
context, when considering the proportionality of the challenged scheme, and
its application to T, assistance can be derived from longstanding judicial
G
recognition of the special position of child offenders. The Court of Appeal ,
correctly in the Commission’s submission, considered this context at [54][56]. Having concluded that the provisions of Part V of the 1997 Act were in
any event incompatible with Article 8, the Master of the Rolls held that the
position is “even stronger in relation to offenders who were children at the
H
time of their offending.”
15
3.22 Section 44(1) of the Children and Young Persons Act 1933 requires every
A
court dealing with any juvenile offender to have regard to his or her welfare
(‘the welfare principle’). Baroness Hale referred to the importance of this
provision in R (Smith) v. SSHD [2006] 1 AC 159, at [25]:
“…. an important aim, some would think the most
important aim, of any sentence imposed should be to
promote the process of maturation, the development of a
sense of responsibility, and the growth of a healthy adult
personality and identity. That is no doubt why the
Children and Young Persons Act 1933, in section 44(1),
required, and still requires, every court dealing with any
juvenile offender to have regard to his or her welfare. It
is important to the welfare of any young person that his
need to develop into fully functioning, law abiding and
responsible member of society is properly met. But that is
also important for the community as a whole, for the
community will pay the price, either of indefinite
detention or of further offending, if it is not done.”
B
C
3.23 The courts have accepted that the welfare principle requires a different
approach to be adopted in relation to the setting of tariffs for children
D
sentenced to detention at Her Majesty’s Pleasure, and adults (R v. SSHD, ex
parte Venables [1998] AC 407, finding that the welfare principle required the
Secretary of State to keep the children’s detention under continuous review).
In Smith Lord Bingham strongly rejected the contention that this duty of
continuous review was spent once the child reached 18 (that case concerned a
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girl aged 17 at the time of the murder, and c. 30 at the time the case came
before the Lords) (pp. 167 – 168, [12], emphasis added):
“Mr Pannick submits that there is no inherent
requirement of continuing review where the detainee is
no longer a child or young person. He points out that
the respondent was aged 27 when the Lord Chief
Justice set her minimum term in November 2001, and
informs the House that none of the HMP detainees
sentenced before 30 November 2000 and still in
custody is now under the age of 18. He points out,
correctly, that the welfare principle laid down in
section 44 of the 1933 Act, as amended by section 72(4)
of and Schedule 6 to the Children and Young Persons
Act 1969, applies only to children and young persons.
Thus in the respondent's case any duty of continuing
review is, in effect, spent. This is not a submission
which I can accept. The requirement to impose a
sentence of HMP detention is based not on the age of
the offender when sentenced but on the age of the
offender when the murder was committed, and it
reflects the humane principle that an offender deemed
by statute to be not fully mature when committing his
crime should not be punished as if he were. As he
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A
B
grows into maturity a more reliable judgment may be
made, perhaps of what punishment he deserves and
certainly of what period of detention will best promote
his rehabilitation. It would in many cases subvert the
object of this unique sentence if the duty of continuing
review were held to terminate when the child or young
person comes legally of age.”
3.24 This ‘humane principle’ is, it is submitted, underpinned by the requirement in
Article 3(1) of the UN Convention on the Rights of the Child (‘UNCRC’) that
the best interests of the child shall be ‘a primary consideration’ in all decisionmaking by the State (including judicial decision-making); and Article 40
UNCRC. Article 40 recognises the importance of rehabilitation for children.
Every child alleged as, accused of, or recognised as having infringed the penal
C
law is to be treated in a manner consistent with the promotion of the child’s
sense of dignity and worth, which reinforces the child's respect for the human
rights and fundamental freedoms of others and which takes into account the
child's age and the desirability of promoting the child’s reintegration and the
child's assuming a constructive role in society. In relation to long spent non-
D
conviction disposals, as in the appeal concerning T, an analogous humane
principle supports the notion that the individual can at some point have a
‘clean slate,’ without a trivial matter from his childhood remaining
permanently subject to automatic disclosure, regardless of its relevance.
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3.25 The UNCRC is taken into account by the European Court of Human Rights
when assessing the parameters of the ECHR, particularly Article 8. The
President of the Court has described this as a now well-established principle:
“In the Strasbourg case-law, the principle of giving
priority to safeguarding the best interests of the child is
firmly established. The European Court has invoked it in
different contexts over the years, beginning with the reuniting of children taken into social care with their
parents (e.g. Hokkanen v. Finland, 23 September 1994,
Series A no. 299-A, and Nuutinen v. Finland, no.
32842/96, ECHR 2000-VIII).”15
F
3.26 The GC in Neulinger v. Switzerland (2010) 28 BHRC 706, in drawing upon
G
the UNCRC in interpreting Article 8 ECHR, emphasised the requirement for
the ECHR to be interpreted in harmony with the general principles of
international law (at [131]).
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15
Sir Nicholas Bratza, ‘The Best Interests of the Child in the Recent Case-Law of the
European Court of Human Rights,’ Franco-British-Irish Colloque on family law
(Dublin), 14th May 2011, p. 2.
17
3.27 The UNCRC thus, by virtue of s. 2(1) HRA, has a place in the interpretation of
A
Convention rights by the courts in this jurisdiction, and failure to adhere to the
UNCRC’s principles will violate the ECHR: R (P & Q) v. SSHD [2001] 2
FLR 383, [33] (per Lord Woolf CJ); and [2001] 2 FLR 1122, [85]–[87] (per
Lord Phillips PSC); R v. SSHD, ex parte Venables [1998] AC 407 at 530C (per
Lord Hope); R (SR) v. Nottingham Magistrates’ Court [2001] EWHC Admin
B
802, [65]-[67]; R (Howard League for Penal Reform) v. SSHD [2003] 1 FLR
484, [51] (per Munby J). The Supreme Court has in three recent decisions
emphasised the importance of the best interests principle, and its enforceability
in the domestic courts: ZH (Tanzania) v. SSHD [2011] 2 AC 166; R (HH and
PH) v. Deputy Prosecutor of the Italian Republic, Genoa; F-K v. Polish
Judicial Authority [2013]1 AC 338; BH and KAS/ H v. The Lord Advocate and
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Another (Scotland) [2013] 1 AC 413.
3.28 Further, the GC in S and Marper, [54], cited Article 40 UNCRC, and the
Canadian case of R v. RC [2005] 3 SCR 99. In R v. RC the Supreme Court of
Canada considered the issue of retaining a juvenile first-time offender’s DNA
D
sample on the national data bank. The court upheld the decision by a trial
judge who had found, in the light of the principles and objects of youth
criminal justice legislation, that the impact of the DNA retention would be
grossly disproportionate. In his opinion, Fish J observed:
“Of more concern, however, is the impact of an order
on an individual's informational privacy interests. In R
v. Plant [1993] 3 SCR 281, at p. 293, the Court found
that s. 8 of the Charter protected the 'biographical core
of personal information which individuals in a free and
democratic society would wish to maintain and control
from dissemination to the state'. An individual's DNA
contains the 'highest level of personal and private
information': S.A.B., at para. 48. Unlike a fingerprint,
it is capable of revealing the most intimate details of a
person's biological makeup. ... The taking and retention
of a DNA sample is not a trivial matter and, absent a
compelling public interest, would inherently constitute
a grave intrusion on the subject's right to personal and
informational privacy.”
3.29 The Commission submits that, when considering the proportionality of the
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blanket scheme, and its application to T (whose warnings in 2002 were his
first and only involvement in the criminal justice system), this background is
of relevance. Both of the Appellants are subject to the provisions of the
UNCRC, and the Court is also to use the UNCRC when construing the ECHR
in this appeal.
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(c) Bright Line Rules
3.30 The Commission recognises the importance of retaining identification of those
charged with or convicted of offences, and disclosing it in certain
circumstances. However in the Commission’s view there is no justification for
disclosing the information that is the focus of this case due to the application
of a blanket policy, regardless of the individual circumstances. It is essential
B
that such powers are used appropriately and proportionately and exercised
fairly and in a Convention compliant manner.
3.31 The Strasbourg court has regularly criticised, in a wide variety of contexts, the
application of blanket, general rules, and the Convention generally abhors a
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blanket rule. This includes when Parliament has mandated such blanket rules:
see e.g. Hirst v. UK (No. 2) (2006) 42 EHRR 41 (GC) (‘Hirst (No. 2)’) at [82]
- the statutory blanket ban on serving prisoners voting in House of Commons
elections was a “blunt instrument” which “strips the Convention right to vote
to a significant category of persons and does so in a way that is
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indiscriminate.”
3.32 As is referred to in Part 2 above, the Appellants place reliance in their case
upon the fact that non-recordable offences are not disclosed pursuant to s.
113B. The Commission respectfully submits that this is not a persuasive
answer to the submissions concerning the indiscriminate nature of the scheme,
E
given that:
3.32.1
A scheme may be blanket, generalised and indiscriminate without
being of universal application. In Hirst (No. 2), for example, the
impugned scheme did not apply to all prisoners (a distinction was
drawn between convicted and remand prisoners, for example), but
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the GC nevertheless found it to be indiscriminate and unjustified;
3.32.2
As highlighted by Mrs. Mason in her Phase 2 report, the distinction
between recordable and non-recordable offences is not linked to
public protection, nor does it equate to gravity of the offences.16 She
expressed concern that the system is resulting in a “growing list of
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offences that are treated as recordable... under regulations” and
that “the process does not appear to be governed by any set criteria.
It is hard to see any consistent justification for why the list contains
the offences it does”. She highlighted anomalies in the included and
excluded offences; and also the anomaly created by the fact that a
minor penalty for a theoretically imprisonable offence is recorded on
H
16
Pp. 15 – 18.
19
the PNC, whereas a large fine for an offence that is not imprisonable
A
is not.
3.33 The Commission’s view is that a blanket, general and indiscriminate policy of
disclosure cannot be justified under Article 8(2). A blanket policy is the
antithesis of proportionate. It takes no account of whether the conviction or
B
non-conviction disposal is spent or unspent, the seriousness of the offence, the
passage of time, the age of the person at the time, or any other factor. There is
no filtering mechanism in place under the 1997 Act which allows for
consideration of whether the information is in fact relevant in the individual
case – as the definition of ‘any relevant matter’ is fixed. The Commission’s
view is that disclosure could be proportionate in a particular case only if it
were relevant to the decision for which disclosure was required.
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An
indiscriminate regime is inimical to proportionate governance.
3.34 The Commission further considers that these appeals raise a general, important
issue concerning the question of the compatibility, in cases such as these, of
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so-called ‘bright line’ rules, which produce harsh or burdensome
consequences for certain groups of individuals but are justified by reference to
administrative economy and convenience (Appellants’ Notice, at [6(1)(6)]).
The Commission considers that the establishment of such rules gives rise to
important issues under the Convention. The Commission addresses below (i)
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the ECHR approach to challenges to bright line rules; (ii) strict scrutiny of
justifications for such rules; and (iii) the lack of adequate justification in the
present case.
(i) The Approach to be Adopted under the ECHR to Challenges to Bright
Line Rules
F
3.35 As regards the approach to be applied in determining the compatibility of a
general measure amounting to a bright-line rule with Article 8 (or indeed,
other fundamental rights under the Convention), a number of points are clear
from the established jurisprudence of the ECtHR.
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3.36 The proportionality of a bright line rule, even one created by legislation, must
be assessed in the context of the concrete facts of an individual case. The
ECtHR has frequently restated the proposition that “without losing sight of the
general context of the case, it must, in proceedings originating in an
individual application, confine its attention, as far as possible, to the concrete
case”: see e.g. James v. UK (1986) 8 EHRR 123, [36]; Ashingdane v. UK
20
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(1985) 7 EHRR 528, [59]; and Guzzardi v Italy (1981) 3 EHRR 333, [88]. The
ECtHR has adopted this approach even where the effect of an applicant’s
challenge is to an act or measure required by a bright line rule of domestic
law. For example:
3.36.1 In James, the Court was concerned with the deprivation of ownership of
B
real property through operation of the Leasehold Reform Act 1967. The
Court observed at [36] that it would not, “examine the legislation in
abstracto. The individual enfranchisements complained of are
illustrative of the impact in practice of the reform it introduced and, as
such, material to the issue of its compatibility with the Convention. In
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this respect, the consequences of application of the legislation such as
occurred in the 80 specific transactions before the Court are to be taken
into account”. In the ECtHR’s analysis of the facts, at [54]-[69], it
devoted a great deal of careful attention to the position of the applicants,
the proportionality of the justification for the interference with their
property rights, and the safeguards in place.
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3.36.2 A similar approach was adopted by the Court in Ashingdane v. UK, in
which the applicant complained, inter alia, that by operation of s. 141,
Mental Health Act 1959 he was unable to access a court to challenge
the lawfulness of his continued detention. In considering the question of
proportionality, at [59]-[60], the ECtHR carefully considered the limited
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scope of the restriction on access to courts imposed by s. 141, the
discretion available in its application and its consequences for the
individuals in question (concluding that, on the facts, the restriction
imposed had not been disproportionate).
3.36.3 In Dickson v. UK (2008) 46 EHRR 41 (an Article 8 challenge to the
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SSHD’s policy only to provide artificial insemination for prisoners on
an exceptional basis) the GC of the ECtHR observed, at [82]: “the
Court considers that the policy as structured effectively excluded any
real weighing of the competing individual and public interests, and
prevented the required assessment of the proportionality of a
restriction, in any individual case”, thereby emphasising the importance
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of a rule not being structured or applied in a manner which does not
enable account to be taken of the proportionality of measures in
individual instances.
3.36.4 Most recently, in Animal Defenders v. UK the ECtHR held, at [108],
that although in given cases “[a] general measure has been found to be
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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
21
a risk of significant uncertainty [...] of litigation, expense and delay [...]
A
as well as of discrimination and arbitrariness... [t]he application of the
general measure to the facts of the case remains, however, illustrative
of its impact in practice and is thus material to its proportionality”
(emphasis added). Thus, any justifications as are advanced for the
creation of a general measure in abstracto must be carefully weighed
B
against concrete instances and evidence of disproportionality in such
instances.
3.37 It is clear that even when considering a challenge to a legislatively enacted,
general rule, careful consideration must be afforded to the proportionality of
the interference of the bright line rule in question with individual parties in
given cases.
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It is the settled jurisprudence of the ECtHR that such an
approach to the assessment of proportionality is required.
(ii) Strict Scrutiny of Justification for Bright Line Rules
3.38 A second point apparent from the ECtHR’s jurisprudence in respect of bright
D
line rules which admit of no discretion is that the proportionality of such rules
has been subjected to close scrutiny. In applying such close scrutiny, the
nature of the right in question is a pertinent factor. The Commission notes
that the very essence of the idea of proportionality is that rules or principles
are tailored, to a reasonable degree, to the circumstances of particular
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categories of case. It is submitted that the enactment of a rule which admits of
no exceptions and which is does not allow for variation or discretion in the
treatment of different categories of individuals by its nature is unlikely to be
proportionate in cases where, as here, interference with fundamental rights is
at issue.
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3.39 For example, in O’Donoghue v. UK (2011) 53 EHRR 1 the applicants
challenged, inter alia, a bright line rule imposing a blanket prohibition on the
exercise of the right to marry, regardless of whether or not the proposed
marriage was one of convenience, pursuant to a scheme established by
Parliament under the Asylum and Immigration (Treatment of Claimants, etc.)
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Act 2004 and set out in the Immigration (Procedure for Marriage) Regulations
2005. The ECtHR held, at [89] (emphasis added):
“The Court recalls that it has previously, albeit in
different circumstances, held that a general, automatic
and indiscriminate restriction on a vitally important
Convention right fell outside any acceptable margin
of appreciation, however wide that margin was [...]
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Even if there was evidence to suggest that persons
falling within these categories were more likely to enter
into marriages of convenience for immigration
purposes – [...] the Court finds that a blanket
prohibition, without any attempt being made to
investigate the genuineness of the proposed marriages,
restricted the right to marry to such an extent that the
very essence of the right was impaired. The existence of
the exception on compassionate grounds did not
remove the impairment of the essence of the right, as
this was an exceptional procedure which was entirely
at the discretion of the Secretary of State.”
B
3.40 Similarly, in Dickson (above), the GC held at [82] that “the policy placed an
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inordinately high “exceptionality” burden on the applicants when requesting
artificial insemination facilities” and recalled at [79] that “a general,
automatic and indiscriminate restriction on a vitally important Convention
right must be seen as falling outside any acceptable margin of appreciation,
however wide that margin might be”. Precisely this formulation was reiterated
by the GC in Hirst (No. 2), at [82], reaffirmed by the GC in Scoppola v Italy
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(No.3) (2013) 56 EHRR 19, at [96] (the prisoners’ voting cases).
(iii) Bright Line Rules Not Justified in Circumstances of Present Case
3.41 In certain very limited circumstances, it is accepted that there may be
situations, where, following careful consideration, including reflection on the
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proportionality of measures on different categories of individuals, bright line
rules may be adopted. However, the Commission submits:
3.41.1
In the circumstances of the present case, the justification advanced
for a bright line rule requiring disclosure of all convictions and nonconviction disposals recorded on the PNC are not convincing.
Moreover, although the ECtHR has identified circumstances in
F
which a bright line rule which allows limited consideration of
individual
circumstances
may
be
permissible,
the
present
circumstances are far from those which the Court has regarded as
potentially justifying such an approach (see Animal Defenders v.
UK, at [108]).
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3.41.2
Second, in the circumstances of the present case, where the
interference at issue is with a key fundamental right, with
consequences of disclosure for individuals potentially “devastating”
(MM v. UK, [200]), a broad margin of appreciation is not available.
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3.42 The Appellants submit that the area in which the present bright line rule is
enacted is one which demands the view taken of this matter by Parliament
23
should be afforded considerable respect, and that the Court of Appeal failed to
A
pay sufficient regard to this. The Commission agrees that careful attention
must be paid to the balance sought to be struck in primary legislation on this
matter and appropriate weight accorded to this. However, the importance of
the right at stake in the present case is of importance in considering the weight
to be afforded (see e.g. S and Marper at [102]: “The breadth of this margin
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varies and depends on a number of factors, including the nature of the
Convention right in issue, its importance for the individual, the nature of the
interference and the object pursued by the interference. The margin will tend
to be narrower where the right at stake is crucial to the individual’s effective
enjoyment of intimate or key rights”).
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3.43 The aspects of the right to private life at stake in the present case (including
proportionate disclosure of information about one’s past, and association with
others in gainful employment) are fundamental, for the reasons outlined above
at [4.6] – [4.19].
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3.44 Further, as regards the advanced justification for the bright line rule in the
present appeals:
3.44.1
The Commission respectfully agrees with the Court of Appeal at
[38]: a “fundamental objection to the scheme is that it does not seek
to control the disclosure of information by reference to whether it is
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relevant to the purpose of enabling employers to assess the
suitability of an individual for a particular kind of work” and “the
disclosure regime was introduced to protect children and vulnerable
adults. That objective is not furthered by the indiscriminate
disclosure of all convictions and cautions to a potential employer,
regardless of circumstances.” The blanket nature of the disclosure
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regime goes wider than is necessary to achieve its purpose of
protecting children and vulnerable adults, and the protection of
children or vulnerable persons would not be diminished if a different
scheme involving some for of filter mechanism were put in place,
attenuating the disproportionate effects on individuals caused by the
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disclosure of information;
3.44.2
The fact that all recordable offences must be disclosed, without the
possibility of a filter mechanism, means that a plethora of relatively
trivial offences of no relevance to questions of suitability must be
disclosed, with potentially drastic consequences for an individual’s
ability to obtain employment;
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3.44.3
The Appellants rely on the proposition that a filter mechanism
would involve “a value judgment as to the resources of the state”
(Appellants’ Notice, at [6(1)(3)]). However, they have failed to
explain through evidence why any form of filter mechanism, which
would attenuate the effects of mandatory disclosure would, in a
meaningful sense, involve questions of the allocation of resources so
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significant that the question is one moved beyond the sphere of
judicial competence. The Commission considers that on the facts of
the present case, any such argument is overstated. In this regard the
Commission respectfully supports the point made by the Court of
Appeal at [47] regarding setting “the spectre of floodgates” at rest.
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Further, an alternative, proportionate scheme need not involve
analysis of the facts of each individual case – see [43] of the
judgment;
3.44.4
Finally, the Commission notes that great caution is required before
otherwise disproportionate measures or rules can be justified by
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reference to administrative convenience, cost or “ease of
administration” (Appellants’ Notice, [6(1)(6)]). In a democratic
society such justifications can rarely provide sufficiently compelling
grounds for measures which would otherwise amount to a
disproportionate interference with a right as fundamental as that
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which is at stake in the present case, interference with which has
consequences for individuals, their employment and, indeed, the
potential for their personal rehabilitation. In this regard, it must be
recalled, that the effect of disclosure on individuals may, in the
words of Lord Neuberger, deliver a “killer blow” to attempts to
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obtain employment in a relevant field (L at [75]), something which
is surely inimical to the rehabilitation of those earlier involved in
minor offending and a consequence which should, the Commission
submits, only operate in circumstances where questions of
proportionality have been carefully weighted rather than through
operation of the blunt instrument of a bright line rule. The
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Commission considers that the latter factor is all the more important
with regard to the rehabilitation of child offenders, given the
obligations arising under Article 8 and the UNCRC, detailed above
at [4.20] – [4.28].
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4.
RELIEF
4.1
The relief granted by the Court of Appeal was entirely appropriate in the
circumstances, given the range of mechanisms available to the Appellants to
address the incompatibility identified in its judgment. The Master of the
Rolls’ conclusion at [75] that it was not appropriate for the Court to identify
the specific provisions of the 1997 Act which require amending, “still less the
precise nature of the amendments that are required,” was, in the
B
Commission’s submission, clearly correct; as was the Court of Appeal’s
indication at [81] that the ROA Order could be amended in a number of ways
to achieve Article 8 compatibility, and it is for Parliament and not the courts to
make legislative choices of this kind. The Commission does not develop
further the question of remedy; it agrees with the Court of Appeal’s reasons at
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[75] and [81].
5.
CONCLUSION
5.1
For the above reasons, the Commission asks the Supreme Court to dismiss this
appeal and uphold the Order of the Court of Appeal.
CAOILFHIONN GALLAGHER
D
E
Doughty Street Chambers
CONOR MCCARTHY
F
Doughty Street Chambers
19th November 2013
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