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High Court judgment – disclosure of criminal records for those who were children at the time of the offence

R v NPCC [2017] EWHC 2586 (Admin)

This case is a judicial review relating to the disclosure of criminal records for those who were children at the time an offence took place.

Details

When R was 13 she accepted a reprimand for shoplifting a sarong from Primark, it was accepted that her role was to assist 3 other girls. A reprimand at the time was lowest level of caution given to children.

At the age of 24 she applied to South Wales Police to become a service support officer – a job which would enable her to gain the experience necessary to apply to become a police constable. She was asked to disclose any prior misconduct and so she revealed the existence of the reprimand. South Wales Police checked on the police national database and confirmed the existence of the reprimand.  R received a letter refusing her application for employment, the letter stated, “under current guidelines it is unlikely that you would be successful in any recruitment process for the UK Police Service due to this reprimand.”

The Admin Court acknowledged that the matter of P & Others was pending before the Supreme Court and that important points are raised in relation to disclosure in those joined cases. An application was made to stay this case pending the judgment from the Supreme Court. However, although  it was recognised that the Supreme Court judgment would be relevant, the Admin Court accepted ‘that to delay judgment in this case would not be conducive to justice or fairness’ [paragraph 8]

The Admin Court divided their analysis into two limbs :

  1. the disclosure of the information
  2. how that disclosed information is used

The Court considered it important to examine both limbs because of the Secretary of State’s argument that a bright line rule requiring disclosure of all prior records in relation to employment with the police is justified because any prejudice can be mitigated by the way in which the information is then used [paragraph 68].  The Court found ‘the facts of the present case amount to a laboratory experiment testing the practicality of this point. Regulation through use has conspicuously failed.….We see real force in the Claimant’s more general argument that leaving the control mechanism to use leaves open the potential for misuse of the information.’ [paragraph 85]

In this case all parties accepted the decision letter from the police was unlawful as its contents related to a policy that had been overturned in 2013. The letter resulted in the claimant being told ‘in terms which can only be described as deliberately off-putting that the chances of her ever being appointed as an officer are slim, and in reality, non-existent.’ [paragraph 74]

The Admin Court found that on the facts before them the claimant’s application was successful and that the letter issued by South Wales Police was a violation of Article 8, ‘in that it reflected a policy whereby historical low-level reprimands served to preclude employment in a supporting role within the police’.

Although the Admin Court was not asked to deal with the retention of records specifically they did note the word of caution sounded in R (T) v Chief Constable of Greater Manchester Police & ors [2014] UKSC 35 about the legality of retention regimes. ‘If the law is that a person in the position of this Claimant is not obliged to disclose a prior record then this begs the question whether the Police can still have recourse to the Police National Computer to verify an applicant’s averment that he/she has no record. Any scheme which prohibited disclosure of cautions of the type in issue in this case would therefore have to address this issue and ensure that the information did not come into the possession of the employer via the back door, whilst still preserving the right of verification.’ [paragraph 86]

Commentary

Practitioners may also be interested in the Justice Select Committee’s report on childhood criminal convictions.  The Court was informed by NPCC after the draft judgment was issued that a new Vetting Code of Practice is imminently to be placed before Parliament which has been approved by the Home Secretary.