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High Court rules criminal record disclosure regime unlawful

In two cases, the High Court has held that the scheme concerning the disclosure of convictions and cautions is incompatible with ECHR art.8. These cases are significant as they challenge the legality of the enhanced Disclosure and Barring Service regime.

Details

R (on the applications of P and A) v Secretary of State for Justice [2016] EWHC 89 (Admin)

The High Court considered the cases of two claimants. Ms P had committed two offences whilst suffering from schizophrenia which at the time was not recognised and remained untreated. The second claimant, Mr A, was convicted of two minor offenses when he was a teenager and had no subsequent offending history.

This case upholds a Supreme Court decision of R (T) v Chief Constable of Greater Manchester Police & ors [2014] UKSC 35 which found that Police Act 1997 Part V was incompatible with Article 8. Following the Supreme Court case, the 1997 Act was amended by the Police Act (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI 2013/1200) and a filtering process was introduced.

This new decision by the High Court confirms that the filtering mechanism introduced by the government in 2013 is inadequate and requires further amendment to ensure compatibility with ECHR art.8. The claim for judicial review was therefore allowed and the precise form of relief to be given to the claimants is now a matter for further submissions.

R (on the applications of G) v Chief Constable of Surrey Police and Others [2016] EWHC 295 (Admin)

The claimant applied for judicial review of the disclosure scheme for convictions and cautions. The claimant had been issued with two reprimands for offences of sexual activity with a child when he was 13 years old. The court held again in this instance that the statutory regime that required disclosure of historic reprimands to potential employers seeking enhanced disclosure was, in the absence of procedural safeguards to assess relevance and proportionality, incompatible with ECHR art.8.

Commentary

The courts have ruled that the government must now revise, once again, its regime concerning the disclosure of certain convictions and cautions. It is anticipated that these case will be appealed by the government.