The SUPREME COURT

Case details

R (on the application of P, G and W) (AP) (Respondents) v Secretary of State for the Home Department and another (Appellants)

Case ID: UKSC 2017/0121

Case summary

Issue(s)

Whether the statutory requirements in relation to the retention and disclosure of certain criminal convictions and cautions to prospective employers, as amended in 2013 by virtue of the Police Act 1997 (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 ("the 1997 Act Amendment Order") and the Rehabilitation of Offenders Act (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 ("the 1975 Order Amendment Order"), constitute a breach of Article 8 of the European Convention on Human Rights ("ECHR").

Facts

The legislation relating to disclosure of police records to potential employers is contained within the Police Act 1997, and the Rehabilitation of Offenders Act 1974 (as amended). In 2013 this legislation was amended (via the 1997 Act Amendment Order and the 1975 Order Amendment Order) in light of the Court of Appeal decision in R (T) v Chief Constable of Greater Manchester Police in which it was held that the original disclosure scheme was incompatible with Article 8 of the ECHR. The revised scheme no longer required disclosure of every spent conviction or caution, but required such disclosure only in a limited set of circumstances: either where the conviction or caution was "current", or was in respect of certain specified offences, or had resulted in a custodial sentence or sentence of service detention, or where the person had more than one conviction.

In these proceedings P, G and W challenged the adequacy of the revised scheme, and argued that the amendments were insufficient to ensure compliance with Article 8. W contended that the revised scheme was not "necessary in a democratic society" because it required disclosure of his conviction for assault occasioning actual bodily harm which had occurred while he was a juvenile and for which he received a two-year conditional discharge. P challenged the revised scheme insofar as it required disclosure of all spent convictions where the individual had more than one spent conviction. P had two convictions, one for theft and a second for failing to answer bail. G challenged the revised scheme insofar as it required disclosure of juvenile reprimands administered for an offence contrary to s. 13 of the Sexual Offences Act 2003. At first-instance W’s challenge was dismissed, but those of P and G were upheld and the cases were heard together by the Court of Appeal along with that of R (Krol) v Commissioner of the Metropolis.

The Court of Appeal considered whether the revised scheme was in "accordance with the law" within the meaning of Article 8 ECHR, and also whether it was "necessary in a democratic society" insofar as it required disclosure of (a) all previous convictions where there is more than one conviction and (b) all previous convictions relating to certain specified offences. The Court of Appeal concluded that neither of these provisions was "in accordance with the law" and that the operation of the scheme as presently devised may in some cases have been disproportionate, and therefore not necessary in a democratic society.

Judgment appealed

[2017] EWCA Civ 321

Parties

Appellant(s)
  1. Secretary of State for Justice
  2. Secretary of State for the Home Department
Respondent(s)
  1. P
  2. G
  3. W
Intervener(s)
  1. Unlock
  2. Clan Childlaw

Appeal

Justices

Lady Hale, Lord Kerr, Lord Sumption, Lord Carnwath, Lord Hughes

Hearing start date

19 Jun 2018

Hearing finish date

21 Jun 2018

Watch hearing
19 Jun 2018 Morning session Afternoon session
20 Jun 2018 Morning session Afternoon session
21 Jun 2018 Morning session