Gallagher for Judicial Review (NI) [2019] UKSC 3

Four individuals with minor or historic convictions, cautions or reprimands challenged statutory schemes requiring disclosure of their criminal records to potential employers as incompatible with Article 8 ECHR. The Supreme Court upheld the schemes broadly, but found the multiple conviction rule and disclosure of youth warnings/reprimands disproportionate.

Facts

The case concerned four conjoined appeals challenging the statutory criminal records disclosure schemes under the Rehabilitation of Offenders Act 1974 (and Northern Ireland equivalent) and Part V of the Police Act 1997, as amended in 2013/2014.

P received a caution for stealing a sandwich in 1999 and was subsequently convicted of stealing a 99p book and failing to surrender to bail. She was homeless and suffering from undiagnosed schizophrenia at the time. She has not offended since and is qualified as a teaching assistant but unable to secure employment.

W was convicted aged 16 of assault occasioning actual bodily harm following a schoolboy fight in 1982, receiving a conditional discharge. He has not offended since and wishes to teach English to adults.

G received two police reprimands aged 13 for sexual activity with younger boys, described as consensual experimentation in the form of dares. He later lost a library assistant job when disclosure was proposed.

Lorraine Gallagher had convictions from 1996 and 1998 for driving without seatbelts and carrying children without seatbelts. A job offer at a day centre for adults with learning difficulties was withdrawn after disclosure of all convictions.

Issues

The court had to decide: (1) whether the statutory disclosure schemes were ‘in accordance with the law’ under Article 8(2) ECHR; and (2) whether the schemes were proportionate interferences with the right to respect for private life, or whether the Convention required individual case-by-case review.

Arguments

The respondents argued that the schemes lacked the quality of law because the categories of disclosable convictions were too broad and not subject to individual review, relying particularly on R (T) v Chief Constable of Greater Manchester Police [2015] AC 49 and MM v United Kingdom. They contended the schemes were disproportionate, insufficiently ‘granular’ and failed to distinguish between convictions of varying relevance.

The Secretary of State argued the schemes were carefully calibrated following extensive consultation (including the Mason reviews), that category-based disclosure was justified given the volume of applications (around four million per year), that employers were best placed to assess relevance, and that certainty was essential for candidates who had to self-disclose under the 1974 Act.

Judgment

Legality

Lord Sumption (with Lord Carnwath and Lord Hughes agreeing, and Lady Hale with Lord Carnwath agreeing in result) held that the current schemes were ‘in accordance with the law’. The Strasbourg test of legality requires accessibility and foreseeability. Safeguards are required where discretion would otherwise be unconstrained. The amended schemes are highly prescriptive, with exactly defined categories and mandatory disclosure within them, so their impact is foreseeable. The earlier findings of illegality in T and MM concerned the indiscriminate nature of the unamended scheme combined with the uncertain basis on which data was retained. The amended schemes, by contrast, draw distinctions based on gravity, age at offence, time elapsed and sentence.

Proportionality

The court accepted that legislating by pre-defined categories was legitimate and proportionate in principle, citing Animal Defenders International v United Kingdom. Four reasons supported this: (i) employers are best placed to assess relevance to particular posts; (ii) evidence that employers abuse disclosure was thin and a Code of Practice constrains them; (iii) certainty is particularly valuable given self-disclosure obligations; and (iv) practical considerations given the volume of applications.

However, two aspects were held disproportionate:

The multiple conviction rule: Requiring disclosure of all convictions whenever there is more than one, regardless of nature, similarity, number of occasions or time intervals, was ‘a particularly perverse way’ of trying to identify criminal propensity. It produced capricious results, as in P’s and Ms Gallagher’s cases.

Youth warnings and reprimands: These were not penal but instructive and rehabilitative in purpose. Requiring their disclosure was ‘a category error, and as such an error of principle’.

Dissent

Lord Kerr dissented, holding that both schemes lacked the quality of law because they contained no safeguards allowing adequate examination of proportionality, particularly given the absence of any link between disclosure and the nature of the employment sought, and (in England and Wales) the absence of an independent review mechanism such as that introduced in Northern Ireland in 2016.

Implications

The majority decision confirms that category-based disclosure schemes can, in principle, satisfy both the legality and proportionality requirements of Article 8, provided the categories are sufficiently defined. It clarifies that the legality test concerns foreseeability and accessibility of the legal rule itself, not whether the rule produces proportionate outcomes in every case — the latter being a separate proportionality question.

The judgment signals a narrowing of the broader reading some had given to R (T), confining its ratio to its factual context of indiscriminate disclosure combined with uncertain retention rules.

Practically, the decision required legislative amendment of the multiple conviction rule and the rule requiring disclosure of youth warnings and reprimands. Declarations of incompatibility were made in respect of section 113A(6)(b) of the Police Act 1997 and article 2A(3)(c) of the 1975 Order (and Northern Ireland equivalents). The schemes otherwise remain intact.

The decision matters to ex-offenders seeking rehabilitation, to employers in safeguarding roles, and to those designing disclosure regimes. It demonstrates judicial deference to legislative choice within the margin of judgment where complex balancing of competing public interests is required, while nevertheless insisting that particular categories must be rationally connected to the aim pursued.

Verdict: The appeals by the Secretary of State and the Department of Justice for Northern Ireland were dismissed in part. The Supreme Court held that the statutory disclosure schemes were ‘in accordance with the law’ and broadly proportionate, but found two aspects incompatible with Article 8 ECHR: the multiple conviction rule and the mandatory disclosure of warnings and reprimands given to young offenders. Declarations of incompatibility were made/varied in respect of section 113A(6)(b) of the Police Act 1997 and the corresponding provisions in the 1975 Order and Northern Ireland equivalents. W’s appeal outcome was reversed in the Secretary of State’s favour. P’s cross-appeal was dismissed, with a declaration of incompatibility added.

Source: Gallagher for Judicial Review (NI) [2019] UKSC 3