R (on the application of T & Anor) v Secretary of State for the Home Department & Anor [2014] UKSC 35

T received police warnings aged 11 for stealing bicycles; JB received a caution for stealing false fingernails. Both had these disclosed on enhanced criminal record certificates years later, jeopardising employment. The Supreme Court held the disclosure regime under the Police Act 1997 violated Article 8 ECHR.

Facts

The case concerned two respondents. T, aged 11 in 2002, received two police warnings for the theft of bicycles. In 2008 and 2010, when applying for part-time employment at a football club and enrolment on a sports studies course involving contact with children, these warnings were disclosed on enhanced criminal record certificates (ECRCs) issued under Part V of the Police Act 1997. JB received a caution in 2001, aged 41, for stealing a packet of false fingernails. In 2009, when seeking employment in the care sector following a training course, an ECRC disclosed this caution, and the training provider declined to put her forward for employment. Both respondents challenged the compatibility of the disclosure regime with Article 8 ECHR.

Issues

The court had to decide: (i) whether the disclosure of cautions and warnings on ECRCs under the Police Act 1997 interfered with rights under Article 8 ECHR, and if so, whether that interference was in accordance with the law and necessary in a democratic society; (ii) whether the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, which removed protection from disclosure in certain employment contexts, was compatible with Article 8 or ultra vires; and (iii) the appropriate remedy where subordinate legislation is found incompatible with Convention rights.

Arguments

The respondents argued that the regime operated indiscriminately: once a request fell within the specified categories, disclosure was mandatory regardless of the nature, age, gravity, or relevance of the offence. The Secretaries of State argued that filtering was already achieved by limiting disclosure to recordable offences; that employers were best placed to judge relevance; and that the Convention permits bright-line rules that are simple and inexpensive to operate. They further argued that any challenge to the 1975 Order concerned a positive obligation attracting a wide margin of appreciation.

Judgment

Article 8 engagement and interference

Following R(L) v Commissioner of Police of the Metropolis [2010] 1 AC 410, the court held that cautions form part of a person’s private life from the outset, being received in private and having profound effects on career aspirations. The issue of ECRCs disclosing the cautions constituted an interference with Article 8 rights.

Legality (majority view)

The majority (Lord Reed, with Lord Neuberger, Lady Hale and Lord Clarke agreeing) applied the reasoning of the European Court in MM v United Kingdom (Application No 24029/07). The Court of Appeal decision there held that the legislation lacked adequate safeguards because no distinction was drawn on the basis of the nature of the offence, disposal, time elapsed, or relevance to the employment sought, and there was no mechanism for independent review. The cumulative effect meant the interference was not “in accordance with the law”. Lord Wilson dissented on this point, considering the issue better analysed as one of necessity rather than legality.

Necessity

All members of the court agreed that the interference was not necessary in a democratic society. Applying the proportionality test from R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621, the disclosure regime operated indiscriminately. In T’s case, warnings for childhood dishonesty bore no rational relationship to protecting children he might work with as an adult. In JB’s case, disclosure of a trivial caution was disproportionate. The court distinguished cases upholding bright-line rules (such as Evans v United Kingdom and Animal Defenders International v United Kingdom) from cases rejecting them (such as Hirst v United Kingdom (No 2), S v United Kingdom, and R (F) v Secretary of State for the Home Department [2011] 1 AC 331), finding the present cases closer to the latter category.

The 1975 Order and remedy

The court held that the Court of Appeal’s declaration that the entire 1975 Order was ultra vires was inappropriate. It would have retrospectively invalidated approximately four million certificates annually and, by consequence, undermined the entire 1997 Act regime (since applications require an “exempted question” defined by reference to the 1975 Order). Lord Wilson held such a declaration was neither just, appropriate nor proportionate under section 8(1) HRA 1998. Regarding whether a declaration of incompatibility could be granted under section 4 HRA, Lord Reed noted that section 4(4)(b) was not satisfied since the 1974 Act did not prevent removal of the incompatibility. Section 6(6)(a) HRA precluded treating the failure to lay an amending order before Parliament as an unlawful act. The court concluded no judicial remedy was necessary in respect of the 1975 Order, particularly as T had suffered no adverse consequences from it and it had been amended in 2013.

Declaration of incompatibility – 1997 Act

The declaration of incompatibility in respect of sections 113A and 113B of the 1997 Act was upheld.

Implications

The decision establishes that mandatory disclosure regimes affecting spent convictions and cautions must contain adequate safeguards, differentiating on the basis of the nature and age of the offence, its disposal, the time elapsed, and its relevance to the purpose of disclosure. Blanket disclosure regimes lacking such calibration are likely to violate Article 8. The judgment endorses the European Court’s approach in MM v United Kingdom that the requirement of legality includes adequate safeguards against arbitrariness in the collection, storage and disclosure of personal data by the state.

The case is significant for its treatment of remedies where subordinate legislation is incompatible with Convention rights. The court cautioned against automatic declarations of ultra vires, emphasising that such declarations can have disproportionate consequences on third parties who have relied on the legislation. The interlocking nature of statutory schemes must be considered before granting broad remedies.

The decision matters to employers, regulatory bodies, and individuals with historic minor convictions or cautions, particularly those from childhood. It confirms that the state’s positive obligations under Article 8 extend to ensuring that criminal records disclosure regimes strike a fair balance between public protection and rehabilitation. The court acknowledged the importance of rehabilitation, particularly for juvenile offenders, reflected in international instruments including the UN Convention on the Rights of the Child. However, the decision is limited to the pre-2013 regime; whether the amended regime introduced by SI 2013/1198 and SI 2013/1200 fully cures the incompatibility remains open for future challenge.

Verdict: The Supreme Court dismissed the Secretaries of State’s appeal against the declaration of incompatibility in respect of sections 113A and 113B of the Police Act 1997, holding these provisions incompatible with Article 8 ECHR. The court allowed the appeal against the Court of Appeal’s declaration that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was ultra vires, holding that no judicial remedy was necessary in respect of the 1975 Order.

Source: R (on the application of T & Anor) v Secretary of State for the Home Department & Anor [2014] UKSC 35