P and A, R (on the application of) v Secretary of State for Justice & Ors

Introduction

We have before us two applications for judicial review in which the respective Claimants (Ms P and Mr A) claim: (1) a declaration that the scheme under Part V of the Police Act 1997 (“the 1997 Act”) , as amended by the Police Act (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI 2013/1200), is incompatible with Article 8 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”), in so far as it requires the disclosure of all convictions when there is more than one conviction on the subject’s record; and (2) a declaration that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023)) (“the 1975 Order”), as amended by the Rehabilitation of Offenders Act (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (SI 2013/1198) is ultra vires as being incompatible with the same article of the ECHR.

A claim originally made by Ms P that the provisions in question also infringe Article 14 in conjunction with Article 8 is no longer pursued.

The 2013 Orders were made (as their titles indicate) in amendment of earlier statutory provisions. Those amendments were made, in part, as a result of litigation then proceeding through the courts in a case that ultimately reached the Supreme Court and ended in judgments of that court delivered on 18 June 2014 and reported as R (T) v Chief Constable of Greater Manchester Police & ors. [2014] UKSC 35. By its 2014 judgment the Supreme Court held that the unamended provisions were incompatible with Article 8 of the ECHR. In the present cases, the Claimants contend that the amended provisions are also incompatible with the ECHR for very similar reasons. The Defendants submit that the amendments made now render the statutory scheme compatible with that Convention.

The Revised Statutory Scheme and its Background

The Rehabilitation of Offenders Act 1974 introduced a process whereby convictions and cautions for criminal offences do not have to be disclosed in answer to questions, for example by employers or prospective employers, in so far as such convictions and cautions are “spent” and a person is exempted from liability for failing to disclose such matters in circumstances when otherwise he would be obliged to do so. However, pursuant to section 4(4) of the 1974 Act, the predecessor of the Secretary of State for Justice made the 1975 Order providing for certain exceptions to this relief from any requirement to disclose a criminal record in the case of duties under, or for assessment of, suitability for admission to, certain specified professions, offices and employments. These include work with children or vulnerable adults: Article 3(1)(a), (aa), (e) and (f) of, and Schedule 1 to, the 1975 Order and cases involving the grant of approvals and permissions by the Financial Conduct Authority (Article 3(1)(a) and (g) and Schedule 1). Those exceptions are the ones most directly relevant to the cases before us; there are others.

The uncontroversial object of the legislation, primary and subordinate, is to facilitate employment of former offenders, while affording protection to the vulnerable and recognition of the special requirements of certain sensitive professions, employments and activities.

Until 29 May 2013, the effect of the 1975 Order was that a person was not exempted from disclosure of any spent conviction or caution where the exceptions provided for by the Order applied. Under the revised provisions that blanket arrangement has been modified in a manner which I endeavour to explain below.

Part V of the 1997 Act created new machinery for disclosure of criminal records held by the police where they are required to assess suitability of persons for employment or engagement in particular types of positions of trust or sensitivity, including positions involving contact with children.

Under this Act, the Disclosure and Debarring Service (“DBS”), formerly the Criminal Records Bureau, is required to issue a criminal record certificate (“CRC”) or an enhanced criminal record certificate (“ECRC”) to any person who applies for such a certificate, on an application countersigned by a “registered person”. Broadly, registered persons are those entered on a register maintained by the Secretary of State containing the names of those who demonstrate a potential requirement of a need to ask “exempted questions”. An “exempted question” is “a question which…so far as it relates to convictions, is a question to which section 4(2)(a) or (b) of the [1974 Act] (effect of rehabilitation) been excluded by an order of the Secretary of State under section 4(4) of that Act”: section 113A(6) of the 1997 Act, i.e. a question relevant to suitability for engagement in specified sensitive activities. Thus, the 1997 Act largely “tracks” the 1975 Order.

The significant difference between a CRC and an ECRC is that the latter must include not only matters formally included in police records, but also information which the relevant police force reasonably believes to be relevant to the enquiry made and which ought to be included. Such additional information is apparently known as “soft intelligence”: contrast sections 113A(3)(a) and 113B(3)(a) and (4) of the 1997 Act.

The ECRC is also supplied on an application countersigned by a “registered person” who must state that the certificate is required for the purposes of an exempted question asked for a “prescribed purpose”. A “prescribed purpose” is, in turn, a purpose prescribed under regulation 5A of the Police Act 1997 (Criminal Records) Regulations 2002 (SI 2002/233). This sets out a list which overlaps, but is not identical to the list in article 3 of the 1975 Order, itemising situations in which the registered person proposes to consider the applicant’s suitability for a specified position of trust or sensitivity.

As in the T case, where Lord Wilson said it is convenient to regard both the obligation of a person to disclose a spent conviction or caution under the 1975 Order and the obligation of the DBS to disclose a spent conviction or caution in a ECRC as running in parallel, the same is true in this case under the revised regime. In this judgment, I proceed accordingly, particularly as the arguments of the parties took that course. However, as one enters the details of the decision in T, one has to note that the Supreme Court reached slightly different conclusions with regard to the 1997 Act and the 1975 Order respectively.

Moving swiftly on, however, the old scheme, which foundered in the Court of Appeal and in the Supreme Court in the T case, required disclosure in CRCs and ECRCs of all convictions and cautions, whether current or spent and whatever the nature of the offence or offences to which they pertained. Between the decision in the Court of Appeal and the hearing of the case in the Supreme Court, parallel amendments were made to the scheme under the two 2013 Orders.

The Order under the 1997 Act amended the definition of “relevant matter” in 113A(6) of the Act which now provides as follows:

“ “relevant matter”… means—

(a)

in relation to a person who has one conviction only:

(i)

a conviction of an offence within subsection (6D);

(ii)

a conviction in respect of which a custodial sentence or a sentence of service detention was imposed; or

(iii)

a current conviction.

(b)

in relation to any other person, any conviction;

(c)

a caution in respect of an offence within subsection 6(D);

(d)

a current caution”.

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” (i.e. for an adult within the last 11 years and for a minor within the last 5 years and 6 months), then it will always be disclosable.

The offences listed in subsection (6D) are extensive, and include murder and offences specified under schedule 15 to the Criminal Justice Act 2003, i.e. more serious offences of violence (including assault occasioning actual bodily harm) and all sexual offences, but not, for example theft or common assault.

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”.

I should note at this stage that the amendments enacting the scheme in its present form were passed under the affirmative resolution procedure after debate in both Houses of Parliament.

It is clear that in the period between September 2009 and December 2011 the Government had been considering its policy with regard to the retention and disclosure of police records and the changes in the legislation was not entirely driven by the decisions in the T litigation. It had appointed Ms Sunita Mason as Independent Advisor for Criminality Information Management. Her first report of March 2010 led to the setting up of the Independent Advisory Panel for the Disclosure of Criminal Records (“IAPDCR”), which Ms Mason then chaired. In October 2010 the Home Department also set up a Criminal Records Review which was conducted by Ms Mason. This review body reported, in its Phase 1, in February 2011. The report included a recommendation that a filter be introduced to remove, where appropriate, old and minor convictions from CRB checks. The Government response agreed to continue to consider that proposal. By the time of the Phase 2 report in December 2011, it seems that there had emerged a lack of consensus on the Panel, but Ms Mason, in her advisory capacity, suggested certain “Business Rules”. These were:

“1.

Is the conviction defined as minor? If not then disclose.

2.

Does the individual have a single minor conviction? If not then disclose.

3.

Was the single minor conviction received before the person was 18? If yes then the conviction will not be disclosed if it is spent and more than six months old.

4.

Was the single minor conviction received after the person was 18? If yes then the conviction can be filtered out if it is spent and it is more than 3 years old.”

For the Defendants, it is also pointed out that Ms Mason recommended caution at the initial stages of filtering, by setting the bar, at the initial stage, at one single conviction (as was ultimately adopted in the revised scheme). The report included the following passage:

“A threshold pertaining to the number of convictions, cautions, warnings, and reprimands defined as minor should be applied. In the first instance, this should be set at 1 (one). This would allow individuals to be given ‘a second chance’ where a conviction is defined as minor and it meets the time definition for filtering.”

In the evidence before us, we were further referred to certain passages in the Parliamentary debates in each House of Parliament in which the threshold for disclosure in cases where there was more than one conviction was identified by Ministers and supported by the Opposition spokesman in the House of Commons. With this background the amending orders of May 2013 received their affirmative Parliamentary approval.

Background Facts of the Claimants’ cases

The facts personal to the Claimants underlying these proceedings can be summarised as follows.

Ms P is now 47 years old. Until 1997 she worked as a teacher in Spain and Greece. At that stage she became unwell and some 3 ½ years later was diagnosed as suffering from schizophrenia. During the 3 ½ year period her condition was not recognised for what it was and it remained untreated. On 26 July and 13 August 1999 she committed two offences of theft by shoplifting. The objects stolen were a sandwich and a book (priced at 99p). For the first offence she was cautioned. She was prosecuted for the second offence and, following charge, she was bailed to appear before the Oxford Magistrates Court on 20 September 1999. She says that, owing to her condition of health and her homelessness at the time, she failed to remember or appreciate the requirement to surrender to bail; she failed to appear at court and was convicted both of the second theft offence and an offence under section 6(1) of the Bail Act 1976. She was discharged conditionally in respect of each offence. Thus, however, she acquired two convictions.

Ms P has sought voluntary positions in schools and would like to work as a teaching assistant. She has had some success in obtaining voluntary posts, but, as yet has failed to secure paid employment. She submits that her disclosable convictions militate against her getting such employment and carry with them a requirement to explain her past mental health history, to which she attributes her offending behaviour, to her significant embarrassment. While Ms Gallafent QC for the Defendants took us to aspects of the evidence that might suggest that her failure to obtain her desired employment was not necessarily linked to the disclosure of her convictions, common sense must indicate that they can hardly be to her advantage in the search for a remunerated post: see also (quoted below) the judgment of Lord Wilson of Culworth in the T case at [45].

Mr A is now 51 years old. On 15 October 1981, when he was 17 years old, he was convicted of theft of a coat from a market stall. He was fined £30. On 6 August 1982, 23 days after his 18^th birthday, he was convicted of stealing a motor cycle and of driving without insurance. He was sentenced to pay a £50 fine and to 24 hours attendance at an attendance centre. He has no subsequent criminal history. However, he too is caught by the requirement for lifetime disclosure of all but a single conviction.

We are told that Mr A is concerned that his family might learn of the convictions (of which it seems they are ignorant) and that his work as a finance director and project manager might require due diligence checks or might engage the Financial Services Authority aspects of the scheme for disclosure of convictions.

It seems that in earlier applications of the scheme to his case, disclosure of his record was “stepped down” under a then extant police policy which filtered out from disclosure requirements offences disclosed on the basis of the length of time that had passed since the conviction, the nature of the offence and the penalty received. However, this extra-statutory practice was abandoned following the decision in Chief Constable of Humberside & ors. v Information Commissioner [2010] 1 WLR 1136 in which it was found to be ultra vires the powers of the police under the 1997 Act.

Summary of the Claimants’ Challenge to the new Statutory Scheme and of the Defendants’ Opposition to the Challenge

The Claimants say that the present scheme infringes their respective rights under Article 8 of the ECHR.

Article 8 provides as follows:

“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.”

Mr Southey QC, for both Claimants, submits that the issues for us are relatively simple and that it can be seen readily from the decision in the T case, supplemented by the decisions of the European Court of Human Rights (“ECtHR”) in MM v United Kingdom (2013) App. No. 24029/07 and of the House of Lords in R (F) v Secretary of State for the Home Department [2011] 1 AC 331, that the present scheme like its predecessor infringes the requirements of Article 8. It is said that the decision in T cannot be properly distinguished from the present cases. It is clear, Mr Southey submits, that the statutory arrangements in issue here constitute an interference with the Claimants’ Article 8 rights and the only question must be whether the interference can be justified under the two limbs of Article 8.2: conveniently called “legality” and “necessity”.

It is submitted by Mr Southey that the facts of the present cases are stark. Here are two persons with minor convictions to their name, committed long ago, which cannot conceivably (he argues) have any relevance to their employment in any capacity today. This demonstrates, he says, the continuing arbitrary nature of the disclosure provisions. He submits that to set the bar at one single conviction is arbitrary and is not either “in accordance with the law” nor is it necessary or proportionate within the second limb of the test set out in article 8.2.

As a further example of the potential for arbitrariness in the present scheme Mr Southey points to the contrasting positions of a person with one conviction for stealing a significant sum of money from an employer and that of a person who steals a sandwich and a cheap article of clothing from two shops: the former has one conviction and, in due course, is exempted from disclosure of it when spent; the latter has two convictions which remain disclosable for life. It is argued that such arbitrary difference cannot be lawful or proportionate within the terms of article 8.2. Further, it is argued, that the present scheme leaves no room for discretion to be applied in any individual case nor does it allow for any review of the disclosure requirements at any time in relation to any person with recorded convictions.

Ms Gallafent for the Defendant is content to proceed on the basis (without concession) that the disclosure or potential disclosure of the Claimants’ convictions constitutes an interference with their respective rights under Article 8. She submits, however, that Parliament has drawn an acceptable, non-arbitrary line requiring disclosure, on a permanent basis, of more than one conviction. It is, she argues, entirely rational to adopt the position that a first time offender should be given a “second chance” but no more. This is in line with the advice taken from the independent reviewer. It is said that the new scheme provides for distinctions to be drawn in respect of (a) serious and less serious offences; (b) on the basis of the sentencing disposals; and (c) the time passed since the relevant conviction. Further, any requirement of independent review of individual cases would be burdensome and impractical in view of the number of cases potentially liable to such a review. Quite contrary to Mr Southey’s submission, Ms Gallafent submits that nothing in the decision in T can be taken as indicating that the revised statutory scheme infringes the Claimants’ rights under Article 8.

These are the broad “battle lines” about which it will be necessary to say more as I draw my conclusions on this case. However, it is convenient next to examine where the law stands on this present subject in the light of the principal decided cases.

The Cases

The case most imminently binding upon us is, of course, the decision of the Supreme Court in the T case. However, it is, I think logical to consider first the earlier decision of the European Court of Human Rights (“ECtHR”) in MM, with a short preliminary mention of the significant difference of approach taken by the majority in the Supreme Court on the one hand and by Lord Wilson on the other.

MM formed the basis of argument and of the judgments in T. As was pointed out by Lord Reed in his judgment (at [94]), the consideration of Article 8.2 in the present context in the ECtHR often begins and ends with the question of whether the interference with Article 8 rights is “in accordance with the law”, without need to address the “necessity” limb of Article 8.2. The important consequence, of course, is that if an interference is found not to be “in accordance with the law”, there is (as Lord Reed further pointed out at [115]) no “margin of appreciation” afforded to national authorities in the measures enacted by them which constitute the interference with rights under Article 8.1. In considering the old version of the present scheme, the Supreme Court, in the majority, applied the decision in MM and held that the interference with Article 8 rights, which the 1997 Act represented, was not “in accordance with the law”. Lord Wilson disagreed with this conclusion, but held (in agreement with the other Justices) that the scheme failed the test of necessity imposed by the second part of Article 8.2. (The majority, represented in the judgment of Lord Reed, found that the 1975 Order failed the “necessity” test under Article 8.2, but found it unnecessary to decide whether it also failed as not being “in accordance with the law”.)

At this point of disagreement between the majority of the Supreme Court and Lord Wilson in the minority on the point, as it seems to me, the court stood at a significant crossroads in our domestic jurisprudence in its approach to Article 8 cases of the present type. It decided to proceed down the same path as the ECtHR in MM, since (per Lord Reed at 113]) that case “appeared to have been based upon its settled case law”. The other view, taken by Lord Wilson is encapsulated in the following passage from his judgment at [38]:

“In my view the Secretaries of State raise a legitimate concern that issues which, when properly analysed, fall to be resolved in the ECtHR by reference to the principle of necessity, and therefore to attract extension to the member state of the margin of appreciation should not instead be resolved by reference to the principle of legality. ... I take the view in respectful disagreement with the other members of this court, that the 1997 Act does not fall foul of the principle of legality. The Court of Appeal was in my view right to decline to conclude, even in the light of the MM case, that either the 1997 Act or the 1975 Order did so; and counsel for T and B have been wise not to seek to uphold any part of its decision by reference to the principle of legality. The complaint in the MM case of an absence of a clear legislative framework in Northern Ireland and of lack of clarity in the contours of the common law powers of its police has no analogue in the present cases; and the instant proceedings demonstrate independent review of a most exacting character. Lord Reed JSC suggests in para 114 that the question whether there are safeguards which enable the proportionality of the interference adequately to be examined affects legality, whereas the question whether the interference was proportionate affects necessity. But in my view the ECtHR’s third point logically falls within the latter; and I deprecate its seepage into the former. ”

As I read the reports of the judgments and arguments, it had not been argued for the Claimants in T that the old scheme was not “in accordance with the law” and the Defendants argued that the MM decision was wrong in this respect: see [2015] 2 AC at 55F-G, where counsel for the Secretaries of State submitted, “The 1997 Act represents clear law”, the traditional litmus test of lawfulness under Article 8 previously adopted in our courts. (See also per Lord Wilson at [38], Loc. Cit. 73F, where the absence of argument to contrary effect was noted as being “wise”.) It seems that the United Kingdom court, like the ECtHR in MM, thus adopted the civilian principle, noted by Lord Reed at [116], of jura novit curia.

It is an important part of our consideration of the present matters, therefore, to bring the decision in MM into the same focus as the domestic decision in the T case.

The importance of MM is that it is a decision of the ECtHR concerning the question of disclosure of a conviction for child abduction. The applicant had been seeking employment as a family support worker. The disclosures were made under the common law applying in Northern Ireland, prior to the enactment of the statutory scheme. Importantly, however (as Lord Reed pointed out at [100] in T) the court treated the complaint as encompassing the continued potential for disclosure under the Police Act 1997. The case was directly relevant to the appeals in T, as affecting the old scheme, and is obliquely relevant to our consideration of the new scheme. It is also to be noted that, in its judgment in MM, the ECtHR had drawn significantly upon our own case law in England and Wales.

In commenting upon the importance of the retention and disclosure of criminal records generally, the ECtHR referred, in paragraphs 188 and 189 of its judgment, to passages in the speeches in the House of Lords judicial committee in R (L) v Commissioner for Police for the Metropolis [2010] 1 AC 410 as follows:

“In this regard the court, like Lord Hope DPSC in R (L) v Comr of Police for the Metropolis (Secretary of State for the Home Department intervening) [2010] 1 AC 410, para 27, emphasises that although data contained in the criminal record are, in one sense, public information, their systematic storing in central records means that they are available for disclosure long after the event when everyone other than the person concerned is likely to have forgotten about it, and all the more so where, as in the present case, the caution has occurred in private. Thus as the conviction or caution itself recedes into the past, it becomes a part of the person’s private life which must be respected: para 188

...

The court notes and agrees with the comments of Lord Hope DPSC and Lord Neuberger MR in R (L), at paras 43 and 73, to the effect that the fact that disclosure follows on a request by the data subject or with her consent is no answer to concerns regarding the compatibility of disclosure with article 8 of the Convention. Individuals have no real choice if an employer in their chosen profession insists, and is entitled to do so, on disclosure: para 189”

Three further passages from the judgment in MM on the generality of disclosure arrangements (before the court’s specific consideration of the old statutory scheme) are, I think, worthy of recall in the present context. The passages are at paragraphs 193, 197 and 200 of the judgment as follows:

(1)

“193.

The requirement that any interference must be ‘in accordance with the law’ under Article 8 §2 means that the impugned measure must have some basis in domestic law and be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. 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 and scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82; Rotaru, cited above, §§ 52 and 55; Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008; and S. and Marper, citied above, § 95)”

(2)

“197.

The Court also notes that the Supreme Court in R (F and another) recognised the need for a right to review in respect of the lifelong notification requirements imposed pursuant to sex offenders’ legislation (see paragraph 120 above). In doing so, Lord Phillips noted that no evidence had been placed before the court that demonstrated that it was not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who posed no significant risk of reoffending. In light of the ensuing uncertainty, he considered that the imposition of notification requirements for life was not proportionate. The Court is of the view that similar considerations apply in the context of a system for retaining and disclosing criminal record information to prospective employers.”

(3)

“200.

... In R(L), Lord Hope noted that in 2008/2009 almost 275,000 requests were made for ECRCs alone (see paragraph 105 above). This number is significant and demonstrates the wide reach of the legislation requiring disclosure. As Lord Neuburger indicated, even where the criminal record certificate records a conviction or caution for a relatively minor, or questionably relevant, offence, a prospective employer may well feel it safer to reject the applicant (see paragraph 108 above; see also the views expressed in the Divisional Court in R (Pinnington), at paragraph 87 above). The Court agrees with Lord Neuberger that it is realistic to assume that, in the majority of cases, an adverse criminal record certificate will represent something close to a ‘killer blow’ to the hopes of a person who aspires to any post which falls within the scope of disclosure requirements (see paragraph 11 above).

201.

It is against the backdrop that the lawfulness of the measures for retention and disclosure of criminal record data, and in particular the adequacy of the safeguards in place, must be assessed.”

With regard to the initial statutory scheme, which was under direct consideration in the Supreme Court, the most material passages in the MM judgment are (as noted by Lord Reed at [110] and [111] of T) those at paragraphs 204 and 206-7. In those passages the European Court said:

(4)

“204.

Regarding any possible future disclosure of the applicant’s caution data, the Court observes that there is now a statutory framework in place for disclosure of criminal record information to prospective employers. Pursuant to the legislation now in place, caution data contained in central records, including where applicable information on spent cautions, must be disclosed in the context of a standard or enhanced criminal record check. No distinction is made based on the seriousness or the circumstances of the offence, the time which has elapsed since the offence was committed and whether the caution is spent. In short, there appears to be no scope for the exercise of any discretion in the disclosure exercise. Nor, as a consequence of the mandatory nature of the disclosure, is there any provision for the making of prior representations by the data subject to prevent the data being disclosed either generally or in a specific case. The applicable legislation does not allow for any assessment at any stage in the disclosure process of the relevance of conviction or caution data held in central records to the employment sought, or of the extent to which the data subject may be perceived as continuing to pose a risk such that the disclosure of the data to the employer is justified.”

(5)

“206 ... 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 limited filtering arrangements in respect of disclosures made under the provisions of the 1997 Act: as regards mandatory disclosure under section 113A, no distinction is made on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought.

207.

The cumulative effect of these shortcomings is that the Court is not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicant’s private life have not been, and will not be, disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicant’s caution data accordingly cannot be regarded as being in accordance with the law. There has therefore been a violation of Article 8 of the Convention in the present case. This conclusion obviates the need for the Court to determine whether the interference was ‘necessary in a democratic society’ for one of the aims enumerated therein.”

It is informative to note, from paragraph 192 of the judgment, that in MM:

“The applicant did not make any submissions as to whether the interference was lawful. The government contended that the interference was in accordance with the law”.

This brevity of treatment of the legality issue under Article 8.2, in submissions before the court, may have reflected a traditional neglect, by UK applicants and respondents alike (it seems at their peril), of the requirement that an interference with Article 8 rights must be “in accordance with the law” and of the width of that concept in European jurisprudence. It may be that the decision in T will have halted that neglect.

I turn to the T case.

At [112] in this case, Lord Reed noted that as long ago as 1984 the ECtHR in Malone v United Kingdom 7 EHRR 14 said that the requirement that the phrase “in accordance with the law” implied that “the law must…give the individual adequate protection against arbitrary interference”: paragraph 68. This is a theme that is carried through to 2012 in paragraph 193 in MM (quoted above). Addressing the generality flowing from this concept of avoidance of arbitrariness, Lord Reed went on to say this:

“113.

... Put shortly, legislation which requires the indiscriminate disclosure by the state of personal data which it has collected and stored does not contain adequate safeguards against arbitrary interferences with article 8 rights.

114.

This issue may appear to overlap with the question whether the interference is ‘necessary in a democratic society’: a question which requires an assessment of the proportionality of the interference. These two issues are indeed iner-linked, as I shall explain, but their focus is different. Determination of whether the collection and use by the state of personal data was necessary in a particular case involves an assessment of the relevancy and sufficiency of the reasons given by the national authorities. In making that assessment, in a context where the aim pursued is likely to be the protection of national security or public safety, or the prevention of disorder or crime, the court allows a margin of appreciation to the national authorities, recognising that they are often in the best position to determine the necessity for the interference. 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 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.

115.

The criticism that the court in MM did not allow for any margin of appreciation is therefore misplaced. Whether a system provides adequate safeguards against arbitrary treatment, and is therefore ‘in accordance with the law’ within the meaning of the Convention, is not a question of proportionality, and is therefore not a matter in relation to which the court allows national authorities a margin of appreciation.”

When he turned to the legislation in the 1997 Act then before the court, Lord Reed again referred to the MM judgment and said this at [119]:

“That judgment establishes, in my opinion persuasively, that the legislation fails to meet the requirements for disclosure to constitute and interference ‘in accordance with the law’. That is so, as the court explained in MM, because of the cumulative effect of the failure to draw any distinction on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought, and the absence of any mechanism for independent review of a decision to disclose data under section 113A.”

Thus, Lord Reed concluded that the interference with Article 8 rights represented by the old statutory scheme was not “in accordance with the law” and (with the majority) dismissed the appeal against the declaration of incompatibility of the relevant sections of the 1997 Act that had been made in the Court of Appeal.

On the second limb of Article 8.2, Lord Reed (and the majority) agreed with Lord Wilson that the old statutory provisions under the 1997 Act could not be regarded as “necessary in a democratic society” in any event. Lord Reed said:

“121.

... In the case of the respondent T, the disclosure of the warnings for dishonesty which had been given to him when he was a young child bore no rational relationship to the aim of protecting the safety of children with whom, as an adult, he might come into contact. In the case of the respondent B, the impact on her private life of the disclosure of her caution for minor dishonesty, many years earlier, was disproportionate to its likely benefit in achieving the objective of protecting people receiving care.”

On this second part of the case, on which the Justices of the Supreme Court were unanimous, Lord Wilson gave the most extensive judgment. I hope that I will be forgiven for citing only a few salient passages from his judgment on this second point which seem to me to have the most bearing on our instant problem. He summarised the attack made upon the statutory scheme at [41] in his judgment as follows:

“41.

Nevertheless the nature of T’s and B’s attack on the regime is obvious. It is that it operated indiscriminately. The exception (so the argument goes) from the eradication for practical purposes of certain entries from a person’s record in accordance with the 1974 Act should be bounded by two sets of rules: rules which specify the type of request which should justify some disclosure and rules which identify the entries which should then be disclosed. The regime certainly contained rules of the former character. But there were none of the latter character. If the type of request was as specified, there had to be disclosure of everything in the kitchen sink. There was no attempt to separate the spent convictions and the cautions which should, and should not, then be disclosed by reference to any or all of the following: (a) the species of the offence; (b) the circumstances in which the person committed it; (c) his age when he committed it; (d) in the case of a conviction, the sentence imposed on him; (e) his preparation or otherwise of further offences; (f) the time that elapsed since he committed the offence; and (g) its relevance to the judgment to be made by the person making the request. The case of T is held up as an egregious example of the flaws in the regime. His theft of two bicycles before he even became a teenager was disclosed in connection with his proposed participation in sporting activities with children, to which (it is said) it had no conceivable relevance; indeed entries reflective of childish error should be a particular candidate for total elimination in the interests (in words of article 40 of the UN Convention on the Rights of the Child 1989) of ‘promoting the child’s reintegration and the child’s assuming a constructive role in society’”.

Lord Wilson referred to the reviews under the supervision of Ms Sunita Mason and said that the evidence filed in the proceedings before the court,

“…convincingly demonstrates the complexities of developing a satisfactory filter, with which the government was apparently continuing to wrestle until (so it seems to have considered) its hand was forced into making the 2013 amendments”.

In argument in T, the Secretaries of State sought to contest the challenge to the scheme with an argument that, “…the Convention can discern justification for an interference in a regime set within bright line rules, which is simple and inexpensive to operate”: see [46]. Authorities in which systems of “bright line rules” had been, on the one hand, accepted and, on the other, rejected by the courts were cited by Lord Wilson in the passage following, ending with R (F (A Child)) v Secretary of State for Justice [2010] UKSC 17.

In that last case, the obligation on sex offenders, sentenced to imprisonment for at least 30 months imprisonment, to notify the police of their changing circumstances for the rest of their lives following release was held to violate their rights under Article 8 and was disproportionate because it failed to provide for review of whether they continued to pose a risk of re-offending.

Of these authorities, Lord Wilson said this at [48]:

“It is easy to conclude that, of the above authorities referable to bright-line rules, the F case is closest to the present. The three situations in which interference was justified by bright-line rules related to complex areas of judgment in which it was far from obvious that a more calibrated system could operate more satisfactorily. The F case, like the present cases, addressed a regime which condemned people to suffer, like an albatross which they could never shake off, permanent adverse consequences of ancient wrong-doing notwithstanding completion of the ostensible punishment (if any) and irrespective of its continuing significance. Nor, to take the present cases, can the Secretaries of State contend that it is impossible to devise a more calibrated system for identifying material which should be the subject of disclosure under the 1997 Act and the 1975 Order. For, in introducing the 2013 amendments, they duly advised it! Indeed back in 2010 the Secretary of State for the Home Department commissioned Sunita Mason’s review. The Secretaries of State convincingly protest that Sunita Mason’s commission was not born of any acceptance that the regime which then existed violated rights under article 8. They point out, more broadly, that the fact that another, more specific, regime might be able to be devised does not, of itself, render the contested regime disproportionate: Wilson v First County Trust Ltd (No2) [2004] 1 AC 816, para 70. But it was the Secretary of State for the Home Department who chose to describe Sunita Mason’s remit as being to scale back the criminal records system (obviously including disclosure under the 1997 Act) ‘to common sense levels’”.

One further short passage from Lord Wilson’s judgment, relevant to a point made in this case, requires recall: see [45], where Lord Wilson said,

“The Secretaries of State say, second, that the regime reflected a conclusion by Parliament that it was preferable to make the prospective employer or other registered person the judge of the relevance of the disclosure to his decision. Rely on him (they say) to sift the wheat from the chaff. But will he do so? In these days of keen competition and defensive decision-making will the candidate with the clean record not be placed ahead of the other, however apparently irrelevant his offence and even if otherwise evenly matched? More fundamentally, the regime reflects an exception to the eradication of the offence under the 1974 Act and it is the fact, or even the potentiality, of disclosure, whatever its ultimate consequences, which causes the interference and for the person creates, as a minimum, embarrassment, uncertainty and anxiety.”

The court’s majority decision was that the disclosure provisions of the 1997 Act in issue were incompatible with Article 8 as they could not meet the requirement of Article 8.2 that the interference with convention rights must be “in accordance with the law”. The court unanimously held that the provisions of the Act were not “necessary in a democratic society”.

The court’s decision upon the 1975 Order, in the form before it, was more nuanced. Lord Reed said this at [140]:

“The question then arises whether the interference with the right to respect for private life resulting from the 1975 Order is justifiable under article 8.2... This question whether the interference is ‘in accordance with the law’ appears to me to be less straightforward, and it is unnecessary to answer it. The conclusion reached in relation to the 1997 Act cannot automatically be extended to the 1975 Order, since the question whether the domestic law affords adequate safeguards against abuse must be judged by reference to the degree of intrusiveness of the interference being considered. As I have explained, particularly strict standards apply in relation to the collection, storage and use by the state of personal data, as under Part V of the 1997 Act. It may be arguable that the requirements in the context of the 1975 Order are somewhat less stringent, as the particularly sensitive element of the use by the state of personal data is absent.”

His conclusion on the question of “necessity” as it affected the 1975 Order was this (at [142]-[143]):

“142.

I cannot however see any rational connection between minor dishonesty as a child and the question whether, as an adult, the person might pose a threat to the safety of children with whom he came into contact. There is therefore no rational connection between the interference with article 8 rights which results from the requirement that a person disclose warnings received for minor dishonesty as a child, and the aim of ensuring the suitability of such a person, as an adult, for positions involving contact with children, let alone his suitability, for the remainder of his life, for the entire range of activities covered by the 1975 Order.

143.

It can only be concluded that the interference in issue in this case was not necessary in a democratic society to attain the aim of protecting the safety of children.”

Notwithstanding this conclusion, the court allowed the appeal of the Secretaries of State against the declaration of incompatibility, made in the Court of Appeal in respect of the 1975 Order, because such a declaration was regarded as inappropriate with regard to subordinate legislation of this type and in the circumstances of the cases under consideration. The court also declined to grant a declaration that the Order was ultra vires. It had been argued that such a declaration was appropriate on the basis that the entry into force of the Human Rights Act 1998 had the effect that the order-making powers conferred by the Act must now be read and given effect in a way which is compatible with the ECHR. The Supreme Court found it unnecessary to decide the question whether such a declaration might properly be made.

In view of this detailed consideration of the appropriate relief in T, if we find that the Claimants’ arguments succeed to any extent in the present case, it seems to me that there will need to be further argument as to the precise extent of any remedy that we should grant. I should not say anything further on the point in this judgment.

I must refer to four other cases, decided after the judgments in T.

First, there is Gaughran v Chief Constable of the Police Service of N. Ireland [2015] UKSC 29. This case concerned the retention of DNA samples by the police. The Claimant had been convicted of an offence of driving with excess alcohol. The conviction would have been “spent” under the Northern Irish legislation after 5 years, but under police policy the DNA sample would be retained indefinitely. On the other hand, such samples taken from a person subsequently acquitted of the charge in respect of which the samples had been taken would be destroyed. The Divisional Court of the Queen’s Bench Division in Northern Ireland held that, in striking a balance between the public interest and the Article 8 rights of a convicted person, the policy challenged was not disproportionate. The Supreme Court dismissed the appeal.

I refer to this case for two reasons: first, a short passage from the judgment of Lord Clarke of Stone-cum- Ebony was relied upon by Ms Gallafent in support of her submission that further calibration of offences or the imposition of a review scheme would be administratively complex; secondly, the result in the Gaughran case appears to have been misstated in another Northern Irish case upon which Mr Southey relied.

The passage to which Ms Gallafent referred is at [48] in the judgment. It is a quotation from the judgment of Girvan LJ in the Divisional Court and is in these terms:

“48.

... (vii) Any differentiation within the system between categories of convicted persons calls for administrative action and has the potential for administrative complexity. Lord Steyn described how there was the potential for interminable and invidious disputes where differentiation is operated. While he was making that point in the context of differentiation between convicted and unconvicted persons (and thus was in error according to the Strasbourg court) the point retains its force in the context of differentiation between convicted persons. Carswell LCJ pointed out in In Re McBride [1997] NI 269, 274 that the legislature wished to have as wide a cover for the database as possible in order to give the police the best chance of detecting criminal offenders. Marper requires protections for unconvicted persons and the current legislation and policy have limited the retention of data to those convicted of recordable offences. To allow further exceptions would in the view of the authorities undermine the effectiveness of the process which is designed to build up a database of those who have been involved in criminality to assist in the war against crime. Such a conclusion by the state authorities is legitimate and rational. (viii) The current policy in fact does distinguish between (a) unconvicted persons and those convicted of offences which are not recordable and (b) those convicted of offences which are recordable. This represents a policy and legislative intent which is not blanket or indiscriminate as such but one which distinguishes between cases.”

The second Northern Irish case, relied upon by Mr Southey, is Gallagher’s Application [2015] NIQB 63. The case has distinct parallels to the matters that we are considering. The applicant was a care worker who was applying for a post with a Health and Social Care Trust; she was offered the post but the offer was later withdrawn. She had a number of convictions, all for various seatbelt offences. Four convictions were in 1996 for driving without a seatbelt herself and three for carrying a child under 14 years old in the back of a car without a seatbelt. All arose from the same incident. In 1998 she received two further convictions for carrying a child under 14 in the back of car without the appropriate belt. In her application for the new post in 2014 she misdescribed these convictions. The job offer was withdrawn because of this. Thereafter, the applicant sought declarations that the potential requirement of indefinite disclosure of these convictions was a breach of her rights under Article 8 ECHR.

It was in this case that the judge appears to have misstated the result of the Gaughran case (supra) where he said at [28]:

“In the Gaughran case the interference (retention of DNA) was found to be disproportionate because

The retention was indiscriminate in terms of the nature and gravity of the offence and the age of the suspected offender.

The duration of retention was indeterminate.

That there were limited possibilities for an acquitted individual to have data removed or destroyed and that there was no provision for independent review of the justification for the retention.”

We were informed by Counsel before us (who are both coincidentally members of the Northern Irish Bar) that, unlike in England and Wales, judgments are not routinely circulated in advance of formal delivery in court and so there would have been no opportunity for correction by counsel of what indeed seems to have been an error.

Mr Southey submitted, however, that the error is not fatal to the persuasive status of the case, since the logic of the learned Judge, in finding that the scheme for disclosure of these convictions did indeed contravene Article 8, remains sound. He relied upon paragraph [40] of the judgment where the judge said:

“While it is the case that the state is entitled to implement bright line rules, those rules cannot be at the expense of the core of the fundamental rights which the convention seeks to protect. In relation to the level of disclosure of criminal record information in this context it seems that any bright line that must be drawn as close to the point at which criminal record information ceases to be relevant as is possible. The disclosure of irrelevant criminal information – whether irrelevant because of the age or nature of the crime goes further than is necessary to achieve the objective of protecting vulnerable people and thus breaches article 8. This scheme is unlawful because in the case of any person with more than one minor conviction the scheme mandates in the first instance all minor convictions, but also mandates that those minor convictions be available for disclosure forever, where a person with a single minor conviction will have that expunged from the records to be disclosed after 11 years. This gives rise to the following irrational situations:

(i)

a person is stopped for driving with a minor without a seatbelt and is convicted. This conviction (assuming there are no further convictions) will not be required to be disclosed after 11 years have passed. Another person convicted for driving with 2 minors receives two convictions. These convictions will always be disclosed and there is no mechanism by which they can be prevented from appearing in an EDC; ...”

We understand, however, that this case is under appeal to the Court of Appeal in Northern Ireland.

Both sides referred us to R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57, a case concerning eligibility for student loans and the exclusion of the Claimant because of her immigration status. It was contended that the “bright line” rules as to eligibility for such loans contravened the rights of the applicant under Article 14 of the ECHR, taken in conjunction with Article 2 of the First Protocol (right to education). In the course of considering this issue, members of the Supreme Court made general observations as to the lawfulness or otherwise of “bright line” rules.

Mr Southey relied upon a passage in the judgment of Baroness Hale of Richmond at [36] – [37] where she said:

“36.

But even if there is no sufficient rational connection between the aim and the rule, is the Secretary of State nevertheless justified in adopting a ‘bright line’ rule which enables those administering the scheme quickly and easily to identify those who qualify? The Strasbourg jurisprudence is not altogether clear on this question. On the one hand, it tends to disapprove of a ‘blanket’ exclusionary rule, such as that on prisoners’ voting (Hirst v United Kingdom (No2) (2005) 42 EHRR 849), or a ‘blanket’ inclusionary rule, such as that governing the retention of DNA profiles: S v United Kingdom [2008] 48 EHHR 1169. On the other hand, it recognises that sometimes lines have to be drawn, even though there may be hard cases which sit just on the wrong side of it; see, for example, Animal Defenders International v United Kingdom (2013) 57 EHRR 607. The need for bright line rules in administering social security schemes has been recognised domestically, for example in R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311. Nevertheless, it was the absence of any possibility of taking the particular circumstances of the case into account which led to the finding of a violation in Ponomaryov, para 62.

37.

The issue is therefore two-fold. First, even if a bright line rule is justified in the particular context, the particular bright line rule chosen has itself to be rationally connected to the aim and a proportionate way of achieving it: see, for example, R (T) v Chief Constable of Greater Manchester Police (Liberty intervening) [2015] AC 49. Secondly, however, it is one thing to have an inclusionary bright line rule which defines all those who definitely should be included. This has all the advantages of simplicity, clarity and ease of administration which are claimed for such rules. It is quite another thing to have an exclusionary bright line rule, which allows for no discretion to consider unusual cases falling the wrong side of the line but equally deserving. Hitherto the evidence and discussion in this case has tended to focus on whether there should be a bright-line rule or a wholly individualised system. There are obvious intermediate options, such as a more properly tailored bright line rule, with or without the possibility of making exceptions for particularly strong cases which fall outside it. There are plenty of precedents for such an approach including in immigration control.”

On the other hand, Ms Gallafent relied in her skeleton argument upon a contrasting passage in the dissenting judgment of Lord Sumption and Lord Reed at [88] to [93]. The entire passage is material for our consideration, but in order to reduce the length of what must unfortunately be a long judgment in the present case, I confine myself to [93] and [94] where their Lordships said this:

“93.

In relation to this type of argument, it was noted in Bank Mellat, para 75 (Lord Reed JSC) that courts must accord a measure of discretion to the primary decision-maker, and therefore exercise corresponding self-restraint, if there is to be any prospect of legislative and executive choices being respected. As the present case illustrates, it will almost always be possible for the courts to conclude that a more precisely tailored bright line rule might have been devised than the one selected by the body to which the choice has been democratically entrusted and which, unlike the courts, is politically accountable for that choice. But in the words of Dickson CJ in R v Edwards Books and Art Ltd [1986] 2 SCR 713, pp781-782, the courts are not called on to substitute judicial opinions for legislative or executive ones as to the place at which to draw a precise line. In a case concerned with the allocation of public expenditure in order to fulfil objectives of social and economic policy, the degree of respect paid by the court to the judgment of the legislature or executive, and the consequent width of the discretion afforded to the primary decision-maker, must be substantial. That is reflected in the test of whether the policy choice is manifestly without reasonable foundation.

94.

The need to accord a measure of discretion to the legislator when considering the proportionality of general rules has been recognised by the European Court of Human Rights...”

Finally, I would refer to the decision of Simon J (as he then was) in R (W) v Secretary of State for Justice [2015] EWHC 1952 (Admin). In that case, the Claimant challenged the continuing disclosure requirement, under the present statutory regime, in respect of his conviction for an offence of assault occasioning actual bodily harm over 30 years earlier for which he had received a conditional discharge.

The decision, like the Northern Irish case of Gallagher, is of assistance because it considers the revised statutory scheme which is before us in the present case. The Claimant did not challenge the lawfulness of the regime in operation. His case was that the Article 8 interference was unnecessary and disproportionate. He argued, first, that his offence was not a signifier of dangerousness; secondly, that it was not a serious violent offence; and thirdly, that the imposition of a conditional discharge was highly relevant and should fall for consideration in the disclosure regime.

Simon J referred to the evidence, before him similar to that in the present case, demonstrating the volume of applications for criminal records certificates (in 2013-4 (3,975,333)) and the cost of the scheme to the public purse (£138.3 million). He referred also to the wide range of activities and occupations that called for the production of these certificates and the Defendants’ assessment that it would be unworkable to differentiate between the types of offence to be disclosed based upon the employment sector for which the applicant required the certificate. Having identified these features, the learned Judge said (at [64] – [65]) this:

“64.

In the light of these points I accept that the introduction of an element of discretion as to what should be disclosed in relation to a particular applicant was neither practical nor sufficiently certain; not least because the way in which the discretion might have to be exercised could change even for the same person when they changed jobs. In my judgment this is the answer to what was perhaps Mr Offer’s most attractive way of putting the Claimant’s case: that a system which required the disclosure of a conviction for an assault which took place when he was a juvenile 30 years ago, was (in the broadest sense) unfair and contrary to beneficial aim of rehabilitation, particularly of juvenile offenders.

65.

The difficulty with this submission is that almost any system which could be devised may lead to harsh results at the margins. This was recognised in R(T) in the Court of Appeal in the Court’s reference to ‘bright-lines’ rules or sub-rules, and its recognition that ‘a proportionate scheme would not require the individual consideration of each case’ and ‘an examination of the facts of each case’”.

The essence of the decision can, I think, be taken from paragraphs [71] and [78] of the judgment as follows:

(1)

“71.

Once it is accepted (as it must be) that Parliament was entitled to specify certain offences in respect of which disclosure must always be made, the Claimant’s complaint simply becomes where Parliament drew the line between those offences and other offences. Simply to say that the line could have been drawn elsewhere does not demonstrate that the same policy objective could have been achieved by a less intrusive means.”

(2)

“78.

The assessment of the advantages and disadvantages of various legislative alternatives is primarily a matter for Parliament and the existence of alternative solutions ‘does not in itself render the contested legislation unjustified’; this conclusion is appropriate only where ‘it is apparent that the legislature has attached insufficient importance to a person’s Convention right’ (Wilson v First County Trust Ltd (No2) [2004] 1 AC 816 at §70, accepted in R(T) in the Supreme Court at [48].”

The judgments in the W case and in Gallagher were delivered on 8 and 10 July 2015.

Mr Southey naturally stressed the concession as to the lawfulness of the scheme that was made by counsel for the applicant in the W case and, while not conceding that Simon J had been right in indicating that that concession had been “realistic”, noted that the offence might be said to be more serious than the offences in the cases before us and that the case did not (like Gallagher) deal with the “two convictions” issue raised by the claims in this case. He also argued that the case did not consider the importance of the possibility of independent review which was a feature prominent in both in MM and in the F case.

The Present Claims and my Conclusions

Both sides in the case before us directed arguments to both two parts of Article 8.2: viz. (in shorthand) “legality” and “necessity”. Mr Southey argued that the revised statutory scheme failed both parts of the test; Ms Gallafent argued to the contrary. I would note further that neither side presented argument reflecting the different conclusions reached by the Supreme Court in T with regard to the 1997 Act on the one hand and the 1975 Order on the other. The arguments of both Mr Southey and Ms Gallafent were directed to the overall scheme. This was perhaps unfortunate.

In passing, I would mention again that Ms Gallafent (per the skeleton argument) proceeded on the basis (without concession) that the scheme constituted an interference with rights arising under Article 8. As at present advised, I cannot see how such a concession could conceivably have been avoided, in the light of the decided cases discussed above. I turn, however, to the points in issue.

To Mr Southey fell the task, in oral argument, of summarising for us the relevant statutory material and introducing the case law. Having done so, he emphasised the requirement emerging from the cases, he said, of the need for adequate safeguards against arbitrariness and the need for similar safeguards to enable the proportionality of any interference with Article 8 rights to be examined: see e.g. per Lord Reed at [113] and [114] in T. He argued that there is no process in cases like the present by which the subject can seek to prevent disclosure of convictions on the basis that disclosure in his case is disproportionate, a failing which goes to the legality of the statutory scheme. He recognised that such a process could, theoretically, take either or both of two forms: (a) a consideration when each criminal record check is made and (b) a mechanism whereby, after a passage of time, a subject can apply for exemption from disclosure.

I have already quoted the passage at [119] in Lord Reed’s judgment in T, where his Lordship identified the “cumulative effect” of failure to draw distinctions between the nature of the offence, the time elapsed, the disposal by way of sentence or otherwise and the absence of any independent review of a decision to disclose the offences.

Mr Southey argued that, in effect, this passage identified two objections to the old scheme: (a) the failure to recognise differences in the factual background to the offences in question (date, age at time of offence(s), sentencing disposal, etc.) and (b) the absence of a review mechanism. In this way, he sought to emphasise the absence of review as particularly relevant in the hierarchy of offending factors.

Ms Gallafent, in contrast pointed to the number of features absent from the old scheme which have now been introduced into the new scheme: the seriousness of the individual offence is catered for, as is sentence and the time elapsed since commission of it, and cautions for offences outside section 113A(6D) are excluded. The test is now, she argued, suitably calibrated, including drawing the line at a second conviction. She submitted that Mr Southey was wrong to put such emphasis on the absence of a review mechanism, which was merely one of a cumulative number of features picked out by the Supreme Court and the ECtHR, the omission of which was not fatal to rules that were sufficiently calibrated in other respects. She argued further that, if a mechanism for independent scrutiny of disclosure is of the significance suggested by Mr Southey, then such a mechanism would be required in respect of the disclosure of all offences, however serious, not merely the relatively minor offending in issue in this case.

Ms Gallafent submitted, as the Secretary of State did in the W case before Simon J, that “…a scheme for individual consideration as to what information should be disclosed on a CRC/ECRC would and could not operate more satisfactorily. There are two central reasons for this: the unworkability of such a scheme and the demands of fairness and legal certainty…”: skeleton argument paragraph 75.

It is argued that even an apparently straightforward case, perhaps characterised by the Claimants’ own circumstances in this case, depends upon considerable background information about the details of their offending history. Each application, it is submitted, would have to be considered separately. This would be prohibitively time-consuming and expensive, particularly when the calibrated nature of the new scheme takes account of factors identified in Ms Mason’s reports as relevant to a disclosure system. Individual consideration of almost 4 million cases a year would, it is argued, be impracticable.

Further, it is suggested for the Defendants that comparison with sex offender registration is not useful since that operation is on a far smaller scale. According to evidence before us, it seems that in 2012 some 28,667 offenders were subject to indefinite notification requirements and, as at November 2013 (after introduction of the Sexual Offences Act 2003 (Remedial) Order 2012) only 296 offenders had requested review of their notification requirements. Moreover, the characteristics of the review are, it is argued, entirely different from what would be required of a review of multiple convictions for a variety of widely differing offences, affecting a number of differing circumstances in which certificates are sought.

In the course of argument, the Defendants produced a helpful “Note on Statistics” which indicated that there were 3,833,149 ECRCs issued in 2014/15 of which 304,151 in which a caution/conviction was identified “pre-filter”, but only 206,293 included a caution/conviction “post-filter”. In other words, 97,858 (32%) had had information filtered out under the new calibrated system when compared with the situation under the old scheme.

While neither party devoted any significant attention to it, there was in a copy of Ms Mason’s March 2010 report to which was annexed an interesting table of comparative information on the varying approaches of European countries to the retention of criminal records. In a number of the nations surveyed, it appears that there are systems of gradual expunging of offences according to time elapsed and seriousness of offending. Varying systems appear to exist in some countries for the exercise of discretion in disclosure of convictions: see e.g. the Netherlands and Sweden.

In my judgment, in taking the step that it did in the T case, the Supreme Court moved our domestic understanding of the requirement for an interference with Article 8 rights to be “in accordance with the law” a significant distance from what had previously been understood. Before that case, I think most English lawyers would have been with Mr Eadie QC, in his argument for the Secretaries of State in T ([2015] AC at 55F), that the 1997 Act represented “clear law” which satisfied the requirement of the first limb of Article 8.2 and that, therefore, the only question was “necessity” of the interference in accord with the second limb of that sub-article. Like the original version of the 1997 Act, we would have regarded the Act (as now amended) to be even more clear and compliant with the “legality” requirement of Article 8. However, it seems to me that we must now adopt a different approach.

As I understand it, the question must now be whether the present statute affords the individual adequate protection against arbitrariness, but also, in order for an interference with Article 8 rights to be “in accordance with the law” there must be adequate safeguards which have the effect of enabling the proportionality of the interference to be adequately examined”. As Lord Reed put it in T at [114],

“This issue may appear to overlap with the question whether the interference is “necessary in a democratic society”: a question which requires an assessment of the proportionality of the interference. These two issues are indeed interlinked…”

We can see, first, from the present cases before us, secondly from the facts of the Gallagher case and, thirdly, from the further examples given by Treacy J at [40] in that case, that the present rules can give rise to some very startling consequences. Such results are, in my judgment, properly to be described as “arbitrary”.

No doubt in many cases rules requiring indefinite disclosure of certain serious offences will be seen to be far from arbitrary, in that such offences will clearly be relevant to anyone considering a person’s suitability for engagement in a sensitive post requiring an ECRC. However, when the rules are capable of producing such questionable results, on their margins, there ought (as it seems to me) to be some machinery for testing the proportionality of the interference if the scheme is to be “in accordance with the law” under the wider understanding of that concept that emerges form the T case, following MM.

If, as I now think, the present scheme, as represented by the 1997 Act at least, is not in accordance with the law, within the meaning of Article 8.2, then (as Lord Reed explained) the state’s “margin of appreciation” falls away. The deference that a judge would always feel towards a scheme expressly sanctioned by Parliament cannot be engaged in this case. Equally, therefore, it seems to me, that questions of administrative convenience which trouble the Defendants so much can have no operative place in assessing the lawfulness of the interference with Convention rights. For my part, in any event, I am far from convinced that a review scheme would be unworkable, in some cases ad hoc related to a specific application for a certificate or more generally after the lapse of suitable time, with a time bar to a further application for review after an unsuccessful attempt.

Having reached the conclusion that the Act in its present form fails to meet ECHR requirements “as to the quality of the law”, a decision as to whether the interference with rights under Article 8 is “necessary” does not strictly arise. However, I can see no reason for thinking that the convictions in issue in the present cases before us bear, for the Claimants’ entire lifetimes, a rational relationship with the objects sought to be achieved by the disclosure provisions of the Act, simply because in the case of each Claimant there is more than one conviction. It seems to me that, with respect, the reasoning that appealed to Lord Reed on this point in the unamended scheme seems just as applicable here.

Turning to the 1975 Order as amended, then it seems to me that we should certainly go no further than did the Supreme Court in T. I would, therefore, not embark upon a consideration of whether the Order is justified as being “in accordance with the law” unless it were strictly necessary. This is particularly so since Lord Reed took the view that the question was “less straightforward” than the question whether its provisions were “necessary in a democratic society”: (see again the T judgments at [140]). I have quoted above the whole of the relevant paragraph of Lord Reed’s judgment.

Lord Reed found the question of whether the old form of the Order met the requirement of “necessity” in Article 8.2 as admitting “a clear answer”. I have already quoted that conclusion: see again [142]-[143] of the judgment. Similarly, as it seems to me, there cannot be a rational connection between the interference with the Claimants’ Article 8 rights and the aim of ensuring suitability for the remainder of their lives across the entire range of activities covered by the Order.

Result

For these reasons, I consider that the claims for judicial review should succeed to the extent indicated. The precise form of declarations (if any) and other relief should, I think, be addressed in further argument, initially in writing, after the formal handing down of our judgments.

I agree that the claims for judicial review should succeed in the manner and for the reasons given, with the precise form of relief to be decided after further argument. I would only add that I have considered carefully the remarks Lord Dyson MR in the Court of Appeal in the T case as follows :

“40.

It is true that “bright-line” rules are legitimate in some circumstances and that they do not become subject to challenge simply because of cases at the margins which are not fully catered for by the rule….For example in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1AC 1312, para 33, Lord Bingham of Cornhill said :

“legislation cannot be framed so as to address particular cases. It must lay down general rules... A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.””

The facts of the Claimants’ cases here can be said to be extreme, or at the margin. But they cannot be said to be unique in terms of what they illustrate. And where, as here, the 1997 Act fails to meet the requirements “as to the quality of the law”, the State’s “margin of appreciation” and considerations such as administrative convenience fall away. Nor, where the 1997 Order fails the test for “necessity”, will it be saved merely because it has the merit of simplicity and ease of administration.