BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Administrative Court) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> T, R (on the application of) v Greater Manchester Police & Anor [2012] EWHC 147 (Admin) (09 February 2012)
Cite as: [2012] EWHC 147 (Admin), [2012] 2 Cr App R 3

[New search] [Context] [View without highlighting] [Printable RTF version] [Help]

Neutral Citation Number: [2012] EWHC 147 (Admin)
Case No: CO/7482/2011


Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ

B e f o r e :


- and -

1st Defendant
2nd Defendant
- and -

Interested Party


Hugh Southey QC and Nick Armstrong (instructed by Stephensons Solicitors LLP) for the Claimant
Mr Ian Mullarkey (instructed by the Legal Services Department, Greater Manchester Police) for the 1st Defendant
Mr Jason Coppel (instructed by The Treasury Solicitor) for the 2nd Defendant and Interested Party
Hearing date: 6 December 2011



Crown Copyright ©

    Mr Justice Kenneth Parker :

  1. The Claimant, who is a 20 year old student, challenges under the European Convention on Human Rights ("the ECHR") an Enhanced Criminal Records Certificate ("ECRC") which was issued to him by the Criminal Records Bureau ("CRB"), an executive agency of the Secretary of State for the Home Department (the Second Defendant in this claim) on 6 December 2010. The ECRC, for which the Claimant had applied in order to facilitate his admission to a sports studies degree course, contained details of a warning for the theft of two bicycles which he had incurred on 22 July 2002 when he was 11 years old. The warning had been given by the Greater Manchester Police, the First Defendant in this claim.
  2. The warning had previously been "stepped down" in 2009 under procedures then operated but had been later reinstated following the decision of the Court of Appeal in Chief Constable of Humberside Police v Information Commissioner [2009] EWCA Civ 1079 [2010] 1 WLR 1136. It should also be observed that since the warning issued about ten years ago the Claimant has not been subject to any further criminal proceedings of any kind and indeed his conduct appears to have been exemplary.
  3. Pursuant to Section 113B of the Police Act 1997 ("the 1997 Act") ECRCs are provided by the CRB on application by an individual who is seeking appointment to a position which involves regularly caring for, training, supervising or being in sole charge of persons aged under 18. An ECRC must include details of any convictions, cautions, warnings and reprimands recorded on the Police National Computer ("PNC"): see Section 113B(3)(a), Section 113B(9) and Section 113A(6). (The reference in Section 113A (formerly Section 113 of the Police Act 1997) to a caution is to be construed as including warnings and reprimands by virtue of Section 65(9) of the Crime and Disorder Act 1998 and Section 17(2)(a) of the Interpretation Act 1978).
  4. A warning can be administered to a child or young person pursuant to Section 65 of the Crime and Disorder Act 1998 where inter alia the child or young person admits to a constable that he has committed an offence, has not previously been convicted of an offence and the constable is satisfied that it would not be in the public interest for the offender to be prosecuted. The warning must be given in the presence of an appropriate adult and must follow guidance promulgated by the Secretary of State. The giving of a warning is a private procedure in the sense that there is no public hearing in a criminal court where a conviction is recorded and any appropriate sentence is publicly imposed.
  5. The Claimant contends that the requirement of the 1997 Act that warnings be disclosed on ECRCs is in breach of his right to respect for private life under Article 8 ECHR. He does not contend that the relevant provisions of the 1997 Act can be interpreted pursuant to Section 3 of the Human Rights Act 1998 so as to avoid the breach of which he complains. Therefore he seeks a declaration of incompatibility of provisions of the 1997 Act. In addition the Claimant seeks a declaration that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) ("the Order") is ultra vires. The effect of the Order is to remove in certain circumstances certain of the protections which apply to spent convictions and cautions pursuant to the Rehabilitation of Offenders Act 1974 ("the ROA").
  6. The effect of the Order is in particular that applicants for certain categories of employment, including teaching positions, are not protected from any consequences which may flow from failing to reveal details of spent convictions, cautions, warnings and reprimands when asked to do so by a prospective employer. The Claimant has not, at least in the recent past, applied for any employment to which the Order might apply.
  7. Challenge to Disclosure under the 1997 Act

  8. I begin with the challenge to disclosure under the 1997 Act because the Defendants accept that following R(L) v Commissioner of Police for the Metropolis [2009] UKSC 3 [2010] 1 AC 410 ("L") the provisions of the 1997 Act requiring disclosure of warnings on CRCs and ECRCs may interfere with the right to respect for private life under Article 8 ECHR. In L Lord Hope of Craighead DPSC explained the legislative history of the disclosure provisions and set out the effect of the current legislation as follows:
  9. "6. Part V of the 1997 Act provided for the issue of three types of certificates. Section 112 dealt with the issue of a criminal conviction certificate. This is a certificate which gives prescribed details of every conviction of the applicant which is recorded on central records, or states that there is no such conviction. Section 113 dealt with the issue of a criminal record certificate. This is a certificate which gives the prescribed details of every conviction within the meaning of the Rehabilitation of Offenders Act 1974 and a caution, or states that there is no such matter. A certificate of this kind may only be issued where the application is countersigned by a registered person and is accompanied by a statement by that person that the information is required for a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 has been excluded by an order of the Secretary of State. Section 115 dealt with the issue of an enhanced criminal record certificate.
    7. Sections 113 and 115 were repealed with effect from 6 April 2006 and replaced by sections 113A and 113B, inserted in the 1997 Act by section 163(2) of the Serious Organised Crime and Police Act 2005. This case concerns an ECRC that was issued under section 115 before it was repealed. To avoid confusion I shall concentrate on the wording of that section.
    8. Section 115, as amended by the Criminal Justice Act 2003 and so far as material for present purposes, provided:
    "(1) … The Secretary of State shall issue an enhanced criminal record certificate to any individual who – (a) makes an application under this section in the prescribed manner and form countersigned by a registered person
    (2) An application under this section must be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked- (a) in the course of considering the applicant's suitability for a position (whether paid or unpaid) within subsection (3) or (4), or (b) for a purpose relating to any of the matters listed in subsection (5) …
    (3) A position is within this subsection if it involves regularly caring for, training, supervising or being in sole charge of persons aged under 18.
    (4) A position is within this subsection if – (a) it is of a kind specified in regulations made by the Secretary of State, and (b) it involves regularly caring for, training, supervising or being in sole charge of persons aged 18 or over."
    In subsection (5) a list was given of applications for various gaming and lotteries licences, for registration for child minding or providing day care and the placing of children with foster parents. This list has been extended by subsequent amendments to include, among others, applications for registration as a social worker or a social service worker and registration as a teacher under section 3 of the Teaching and Higher Education Act 1998.
    9. Section 115(10) provided that the expressions "central records", "exempted question" and "relevant matter" had the same meaning as in section 113, subsection (5) of which was in these terms:
    "In this section – 'central records' means such records of convictions and cautions held for the use of police forces generally as may be prescribed; 'exempted question' means a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by an order of the Secretary of State under section 4(4); 'relevant matter' means – (i) a conviction within the meaning of the Rehabilitation of Offenders Act 1974, including a spent conviction, and (ii) a caution."
    10. Sections 115(6) and 115(7) provided as follows:
    "(6) An enhanced criminal record certificate is a certificate which – (a) gives (i) the prescribed details of every relevant matter relating to the applicant which is recorded in central records, and (ii) any information provided in accordance with subsection (7), or (b) states that there is no such matter or information.
    (7) Before issuing an enhanced criminal record certificate the Secretary of State shall request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion – (a) might be relevant for the purpose described in the statement under subsection (2), and (b) ought to be included in the certificate."
    These provisions have been re-enacted in virtually the same terms by sections 113B(3) and 113B(4) which were inserted into the 1997 Act by section 163(2) of the Serious Organised Crime and Police Act 2005.
    11. Section 124 provides that it is an offence for information provided for criminal record checks and enhanced criminal record checks to be disclosed by members and staff of registered bodies and by members and staff of unregistered bodies and individuals and their employees who receive the information following an application which those bodies or individuals have countersigned, unless the disclosure is made in the course of their duties for the purposes authorised by that section."
  10. L of course concerned the disclosure of "information" under Section 115(6)(a)(ii) and (7) of the 1997 Act rather than disclosure of convictions, cautions and warnings. However, Lord Hope's analysis of the scope of Article 8 in the present context is not confined in terms to the disclosure of "information" under the 1997 Act. It expounds general observations that are of importance to the resolution of the present issue:
  11. "24. The issue as to what does and does not lie within the scope of the article 8 right to respect for private life has been examined in some detail in R (Wright) v Secretary of State for Health, paras 30-32 and in In re British Broadcasting Corporation [2009] UKHL 34, [2009] 3 WLR 142, paras 18-20. In the context of this case it is sufficient to note that it has been recognised that respect for private life comprises, to a certain degree, the right to establish and develop relationships with other human beings: X v Iceland (1976) 5 DR 86; Niemietz v Germany (1992) 16 EHRR 97, para 29. Excluding a person from employment in her chosen field is liable to affect her ability to develop relationships with others, and the problems that this creates as regards the possibility of earning a living can have serious repercussions on the enjoyment of her private life: see Sidabras v Lithuania (2004) 42 EHRR 104, para 48. She is entitled also to have her good name and reputation protected: see Turek v Slovakia (2007) 44 EHRR 43, para 109. As Baroness Hale said in R (Wright) v Secretary of State for Health, para 36, the fact that a person has been excluded from employment is likely to get about and, if it does, the stigma will be considerable.
    25. There is another aspect of the right to respect for private life that needs to be brought into account, as it is directly relevant to the effect on a person's private life of the release of information about him that is stored in public records. In R v Chief Constable of the North Wales Police, Ex p AB [1999] QB 396 Lord Bingham of Cornhill CJ said in the Divisional Court that he was prepared to accept (without deciding) that disclosure of personal information that the applicants wished to keep to themselves could in principle amount to an interference with the right protected by article 8: [1999] QB 396, 414. At p 416 Buxton J put the point more strongly when he said:
    "I do however consider that a wish that certain facts in one's past, however notorious at the time, should remain in that past is an aspect of the subject's private life sufficient at least to raise questions under article 8 of the Convention."
    Buxton J's observations were endorsed by Lord Woolf MR, delivering the judgment of the Court of Appeal: [1999] QB 396, 429. The Convention was not, of course, then part of domestic law and Buxton J's observations in Ex p AB were not supported by reference to any decisions in Strasbourg. But subsequent decisions by the European Court do, I think, provide support for them.
    26. In Rotaru v Romania, (2000) 8 BHRC 449, the applicant who was a lawyer by profession complained of a violation of his right to respect for his private life on account of the use against him by the Romanian Intelligence Service of a file which contained information about his conviction for insulting behaviour because, when he was a student, he had written two letters of protest against the abolition of freedom of expression when the communist regime was established in 1946. In para 43 the court, referring to its judgment in Leander v Sweden (1987) 9 EHRR 433, para 48, said that the storing of information relating to an individual's private life in a secret register and the release of such information come within the scope of article 8(1):
    "Moreover, public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. This is all the truer where such information concerns a person's distant past."
    In Segerstedt-Wiberg and others v Sweden, Application no 62332/00, 6 June 2006, para 72 and Cemalettin Canli v Turkey, Application no 22427/04, 18 November 2008, para 33, referring to its previous decision in Rotaru, the court again said that public information can fall within the scope of private life when it is systematically collected and stored in files held by the authorities.
    27. This line of authority from Strasbourg shows that information about an applicant's convictions which is collected and stored in central records can fall within the scope of private life within the meaning of article 8(1), with the result that it will interfere with the applicant's private life when it is released. It is, in one sense, public information because the convictions took place in public. But the systematic storing of this information in central records means that it is available for disclosure under Part V of the 1997 Act long after the event when everyone other than the person concerned is likely to have forgotten about it. As it recedes into the past, it becomes a part of the person's private life which must be respected. Moreover, much of the other information that may find its way into an ECRC relates to things that happen behind closed doors. A caution takes place in private, and the police gather and record information from a variety of sources which would not otherwise be made public. It may include allegations of criminal behaviour for which there was insufficient evidence to prosecute, as in R v Local Authority and Police Authority in the Midlands, Ex p LM [2000] 1 FLR 612 where the allegations of child sexual abuse were unsubstantiated. It may even disclose something that could not be described as criminal behaviour at all. The information that was disclosed on the appellant's ECRC was of that kind."
  12. Disclosure of "information" was therefore permissible only if the information was, or might be, relevant. However, in an important passage Lord Hope explained why, for the purposes of proportionality under Article 8, relevance would not in every case be sufficient to justify disclosure of information:
  13. "40. The question whether the information might be relevant is not, however, the end of the matter. An opinion must also be formed as to whether it "ought" to be included in the certificate. It is here, as the guidance that is available to the police correctly recognises, that attention must be given to the impact that disclosure may have on the private lives of the applicant and of any third party who is referred to in the information. For the reasons I have already given (see paras 22-29), I consider that the decisions which the chief officer of police is required to take by section 115(7) of the 1997 Act will fall within the scope of article 8(1) in every case. So in every case he must consider whether there is likely to be an interference with the applicant's private life, and if so whether that interference can be justified. …
    42. So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant's right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place. As the many additions that have been made to the list of matters in section 115(5) show, the use that is being made of the requirement to obtain an ECRC has increased substantially since the scheme was first devised. The number of disclosures of information by means of ECRCs has exceeded 200,000 for each of the last two years (215,640 for 2007/2008; 274,877 for 2008/2009). Not far short of ten per cent of these disclosures have had section 115(7) information on them (17,560 for 2007/2008; 21,045 for 2008/2009). Increasing use of this procedure, and the effects of the release of sensitive information of this kind on the applicants' opportunities for employment or engaging in unpaid work in the community and their ability to establish and develop relations with others, is a cause of very real public concern as the written intervention submitted by Liberty indicates.
    43. As Liberty also point out, it is no answer to these concerns that the ECRC is issued on the application of the persons concerned. It is true that they can choose not to apply for a position of the kind that requires such a certificate. But they have, in reality no free choice in the matter if an employer in their chosen profession insists, as he is entitled to, on an ECRC. The answer to the question whether there is any relevant information is likely to determine the outcome of their job application. If relevant information is disclosed they may as a result be cut off from work for which they have considerable training and experience. In some cases they could be excluded permanently from the only work which is likely to be available to them. They consent to the application, but only on the basis that their right to private life is respected.
    45. The correct approach, as in other cases where competing Convention rights are in issue, is that neither consideration has precedence over the other: Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, para 12, per Lord Nicholls of Birkenhead. The rating table in MP9 should be restructured so that the precedence that is given to the risk that failure to disclose would cause to the vulnerable group is removed. It should indicate that careful consideration is required in all cases where the disruption to the private life of anyone is judged to be as great, or more so, as the risk of non-disclosure to the vulnerable group. The advice that, where careful consideration is required, the rationale for disclosure should make it very clear why the human rights infringement outweighs the risk posed to the vulnerable group also needs to be reworded. It should no longer be assumed that the presumption is for disclosure unless there is a good reason for not doing so."
  14. Lord Saville of Newdigate JSC agreed with Lord Hope as did Lord Brown of Eaton-Under-Heywood JSC, who added a short judgment of his own in which he said at paragraph 63:
  15. "That said, there can be no doubting the impact an enhanced criminal record certificate ("ECRC") containing any adverse information is likely to have on the person's prospects of obtaining the desired employment and it therefore seems to me imperative in every case to ensure that the public interest in safeguarding children really does justify the relevant disclosure."
  16. Lord Neuberger of Abbotsbury MR, with whom Lord Brown also agreed, gave a judgment in his own terms but did state at the end of that judgment that he agreed with the judgment of Lord Hope and that his own judgment was little more than an "echo" of those reasons more fully expressed by Lord Hope. It is important to set out the following paragraphs from the judgment of Lord Neuberger:
  17. "68. As to the first issue, I am firmly of the view that article 8 is engaged in this case. An enhanced criminal record certificate (an "ECRC") which contains particulars of any convictions (potentially including spent convictions) or cautions (under section 115(6)(a)(i) and 113(5) of the 1997 Act), or any other information "which might be relevant" and which "ought to be included in the certificate" (under section 115(6)(a)(ii) and 115(7) of the 1997 Act), will often have a highly significant effect on the applicant. In the light of the wide ambit of section 115 (extending as it does to social workers and teachers, as well as to those "regularly caring for, training, supervising or being in sole charge of" children), an adverse ECRC (i.e. an ECRC within section 115(6)(a), rather than section 115(6)(b)) will often effectively shut off forever all employment opportunities for the applicant in a large number of different fields, for the reasons given, in relation to other legislation, by Baroness Hale of Richmond in R (Wright) and others v Secretary of State for Health [2009] UKHL 3, [2009] 2 WLR 267, para 22.
    69. An ECRC must be sought for each job application, but, once an adverse ECRC has been issued in relation to one application, it is, in the absence of special factors, likely to be issued in the same terms in relation to all future applications for posts falling within the ambit of section 115. Even where the ECRC records a conviction (or caution) for a relatively minor, or questionably relevant, offence, a prospective employer may well feel it safer, particularly in the present culture, which, at least in its historical context, can be said to be unusually risk-averse and judgmental, to reject the applicant. The same point applies to an ECRC which only contained material falling within section 115(6)(a)(ii) and (7), even where the "chief officer's opinion" that the material should be included, while rational, was not one which many chief officers would have shared. (Having said that, there will no doubt be cases where the employer will conclude that the information in the adverse ECRC is irrelevant or has been satisfactorily explained or disposed of by the applicant, but such cases would, I suspect, be comparatively rare.)
    71. Quite apart from this reason, while it may be said to be a little artificial to treat it as a separate reason, I consider that article 8 will, at least frequently, be engaged by an adverse ECRC, because it will involve the release of information about the applicant, which is stored on public records. Even where the information released in the ECRC is already in the public domain (as will be the case with almost all convictions), it seems to me that re-publication of the information can often engage article 8: see, in the domestic context, R v Chief Constable of the North Wales Police ex p AB [1999] QB 396, 416 and 429 (per Buxton J in the Divisional Court and Lord Woolf MR in the Court of Appeal, respectively), and, in Strasbourg, Segerstedt-Wiberg v Sweden Application No 62332/00, BAILII: [2006] ECHR 597, 6 June 2006, para 72, and Cemalettin Canli v Turkey, Application No 22427/04 BAILII: [2008] ECHR 1458, 18 November 2008, para 33. Where the information, or a substantial part of the information, released in the ECRC is not in the public domain, as will very often be the position in relation to information falling within section 115(6)(a)(ii) and (7), the case for Article 8 engagement, as I see it, is self-evidently even stronger – see Leander v Sweden (1987) 9 EHRR 433, para 48, and Rotaru v Romania, Application no 28341/95, 8 BHRC 449 4 May 2000, para 43.
    72. In the present case, as Lord Hope has explained in para 28, the information contained in the ECRC pursuant to section 115(6)(a)(ii) and (7), in so far as it related to the appellant (as opposed to her son), was not publicly available and was not even based on events which had taken place in public. Accordingly, for this reason as well, it appears to me that, subject to any other argument raised to the contrary, article 8 is engaged in this case.
    75. Part V of the 1997 Act has the unexceptionable aim of protecting vulnerable people (for present purposes children, but also, in certain circumstances, vulnerable adults), from being harmed by those working with them. It does so by requiring relevant information available to the police, about an applicant for a post involving responsibility for such vulnerable people, to be vouchsafed in an ECRC to the prospective employer. It is then for that employer to decide whether the information is relevant, and, if so, whether it justifies refusing to employ the applicant. As already mentioned, however, it seems to me realistic to assume that, in the majority of cases, it is likely that an adverse ECRC, i.e. one falling within section 115(6)(a), 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 the section. Further, the vouchsafing of the information in an adverse ECRC will of itself normally (and where, as here, it is pursuant to section 115(6)(a)(ii), almost inevitably) impact on the applicant's private life.
    76. Given that, in relation to children-related posts, the section is limited to those seeking employment involving "regular.." responsibility for young people, I am prepared to proceed on the basis that there is nothing objectionable in the requirement that an ECRC must contain the information referred to in section 115(6)(a)(i), as expanded by the definition of "relevant matter" in section 113(5), even though it may on occasions be rather harsh on the applicant concerned. As Lord Woolf MR said in R(X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65, para 20, Parliament "must … be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so …". Whether as a result of a conviction or a caution (which involves the person concerned having admitted committing the offence in question), there can be little doubt that the information in question will be accurate, and will have been sufficiently grave as to amount to a crime.
    77. However, section 115(6)(a)(ii), as expanded by section 115(7)(a), requires the inclusion of a different category of material, which raises very different considerations. First, it may frequently extend to allegations of matters which are disputed by the applicant, or even to mere suspicions or hints of matters which are disputed by the applicant. Secondly, the threshold for inclusion in the ECRC is subjective and very low: information must be included in an ECRC if, in the "opinion" of the chief officer, it "might be relevant". So, information would often properly fall within section 115(7)(a) if it was not in fact relevant, or was only very peripherally relevant, to the applicant's suitability for the post in question. It could be information which would unfairly blacken her name, unjustly prejudice her prospects of obtaining the post or any other post for which an ECRC was required (e.g. a spent conviction for dishonesty), or simply embarrass her."
  18. Lord Neuberger then went on in paragraph 81 to state that if the information might be relevant, a number of different factors needed to be weighed up, for example, the gravity of the material involved, the reliability of the information on which it was based, the relevance of the material to the particular job application, the period that had elapsed since the relevant events occurred and the impact on the applicant of including the material in the ECRC.
  19. It is therefore apparent from L that so far as concerns information under Section 115(6)(a)(ii) of the 1997 Act there is a two-stage procedure to determine the proportionality under Article 8 of disclosure. First, the information must be considered potentially relevant to the decision for which disclosure is required and secondly disclosure should be made only after consideration of other factors exemplified by Lord Neuberger. The person to whom information relates must also have an opportunity to make representations about whether the information is reliable and relevant and whether, in all the circumstances, it ought to be disclosed. However, in my respectful opinion, Lord Neuberger made it clear at paragraph 76 that this two-stage procedure did not apply to convictions and cautions. In the case of convictions and cautions, the information in question is almost certain to be correct and the information conclusively evidences the commission of a criminal offence. There might be debate about the relevance of the conviction or caution to the decision for which disclosure is required in any particular case but in that event the prospective employer is at liberty and under current legislation entitled to know that the prospective employee has committed a crime, and to assess for herself any potential risk in offering employment to that person. It is particularly notable that, although Lord Neuberger expressly disapproved of Lord Woolf CJ's conclusions in R(X) v Chief Constable of West Midlands Police [2005] 1 WLR 65 at paragraph 41 regarding the disclosure of information, his Lordship expressly endorsed at paragraph 76 Lord Woolf's general statement at paragraph 20 of R(X) in its application to convictions and cautions.
  20. As noted above, Lord Brown agreed with the judgments of both Lord Hope and of Lord Neuberger who, in turn, stated that his judgment largely echoed that of Lord Hope. It does, therefore, appear that at least a majority in the Supreme Court were agreed that the two stage procedure formulated by the Court was confined to information under Section 115(6)(a)(ii) of the 1997 Act and did not, as expressly articulated by Lord Neuberger, extend to convictions and cautions for the central reason given by Lord Woolf CJ in R(X). It is correct that Lord Hope did not in terms state that convictions and cautions could lawfully be disclosed in all cases. However it is notable that Lord Hope also endorsed, at paragraph 41, the general statement of Lord Woolf CJ in R(X) at paragraph 20 and observed that no attack had been made under Article 8 on the legislation as such.
  21. It appears to me that it is a reasonable inference from these observations that Lord Hope did not believe that such an attack was sustainable. But in this claim Mr Southey QC, on behalf of the Claimant, accepts that he must show that the legislation as such is incompatible with Article 8, a proposition which, in my view, for the reasons that I have given, cannot be reconciled with the majority judgments in L. The contention that the 1997 Act is incompatible with Article 8 ECHR is simply ruled out by the authority of L in the Supreme Court.
  22. I appreciate that the appeal to the Supreme Court strictly concerned "information" and that, technically, the ratio might be considered to be limited to information. However, it seems to me that the Supreme Court, as part of its consideration of the issue in the appeal, did address convictions and cautions, and gave the strongest indication that different factors applied and that the disclosure provisions as such were not incompatible with Article 8 ECHR. I believe that a judge sitting at first instance should respect the conclusion of the Supreme Court on that question.
  23. Mr Jason Coppel, who appeared on behalf of both the Secretary of State for the Home Department and the Secretary of State for Justice (the Interested Party), submitted that the present legislation, providing for the disclosure of all convictions, cautions and warnings, created clear "bright lines" which are easy to understand and apply, even if (as Lord Neuberger in L accepted) they may produce harsh results in some cases. Mr Coppel referred to other contexts where "bright line" rules had been upheld, even if at the margin the effect of the rules might be harsh or even anomalous: see, for example, R (Reynolds v Secretary of State for Work and Pensions [2006] 1 AC 173 at paragraphs 41, 45 and 51; R (Wilson) v Wychavon District Council [2008] 1 WLR 1434, at paragraphs 56-60. In R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 884 it was contended that the prohibition on political advertising in section 321(2) of the Communications Act 2003 was incompatible with Article 10 ECHR as imposing an unjustified restraint on the right to freedom of political expression. Lord Bingham of Cornhill observed in that case that the weight to be accorded to the judgment of Parliament depended on the circumstances and the subject matter. Lord Bingham attached great weight to the judgment of Parliament in the relevant context for three main reasons, the third of which was stated as follows:
  24. "…. Legislation cannot be framed so as to address particular cases. It must lay down general rules: James v United Kingdom (1986) 8 EHRR 123, para 68; Mellacher v Austria (1990) 12 EHRR 391, paras 52-53; R(Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department intervening) [2002] 1 AC 800, para 29; Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, paras 72-74; R(Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, paras 41, 91. 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 inviolate the rule if, judged in the round, it is beneficial." (paragraph 33)
  25. Mr Coppel also relied on Chief Constable of Humberside Police v Information Commissioner [2009] EWCA Civ 1079; [2010] 1 WLR 1136, in which the Court of Appeal held that the retention of information regarding criminal convictions for, inter alia, disclosure on ECRCs was justified. One of the original complaints in Humberside was that a reprimand for common assault given when a child was 13 had been disclosed on an ECRC five years later. Mr Coppel submitted, in my view correctly, that nothing said in Humberside suggested that disclosure of convictions, cautions and warnings might be incompatible with Article 8 ECHR, and indeed it appears that the Court of Appeal proceeded on the footing that such disclosure was justifiable (see, in particular, Waller LJ at paragraph 28(b) and Hughes LJ at paragraph 111). However, the central issue in Humberside was the retention of information regarding convictions and cautions, etc. The question whether in certain circumstances disclosure of a caution or warning might infringe rights under Article 8 ECHR was not directly in issue, and the case, although giving some support to the Defendants' position, does not, in my view, definitively resolve the contested issue in this claim.
  26. However, for the reasons already given, I believe that I should follow what I interpret to be the majority view of the Supreme Court in L that the 1997 Act, insofar as it requires disclosure of all convictions and cautions, is compatible with Article 8 ECHR. Mr Southey QC forcefully submitted that, even if that were the majority view, the approach upon which it must be predicated cannot now stand with the unanimous decision of the Supreme Court in R(F) v Justice Secretary [2010] UKSC 17; [2011] 1 AC 331 ("F"). In F the Claimants had automatically become subject for an indefinite period to the notification requirements in sections 82 to 86 of the Sexual Offences Act 2003. By those requirements an offender had to inform the police of certain personal details and by the Sexual Offences Act 2003 (Travel Notification Requirements) Regulations 2004 an offender had to inform police of the details of foreign travel plans. The Claimants sought a declaration of incompatibility on that grounds that the absence of any mechanism for review of the notification requirements in the 2003 Act was a disproportionate interference with their rights under Article 8 ECHR.
  27. Lord Phillips of Worth Matravers PSC, with whom Lord Hope of Craighead DPSC, Baroness Hale of Richmond and Lord Clarke of Stone-cum-Ebony JJSC agreed, stated the effect of the relevant Strasbourg jurisprudence, as follows:
  28. "… Those decisions show, however, that the Strasbourg court considers that the possibility of reviewing the retention of sensitive personal information and notification requirements in respect of such information is highly material to the question of whether such retention and notification requirements are proportionate and thus compliant with Article 8. Para 68 of Bouchacourt v France suggests that, but for the right to apply for deletion of the data retained, the lengthy registration period would have been held disproportionate." (paragraph 34)
  29. At paragraph 51 Lord Phillips stated the central issue in the appeal:
  30. "51. The interrelationship between these measures and the notification requirements is obvious. In the first place, the same criteria often apply to determine those who are subject to the notification requirements as apply to determine those who are potentially subject to the various methods of management and supervision. In the second place, notification requirements are important in that they assist the responsible authorities to keep tabs on those whom they are supervising and managing. This case turns, however, on one critical issue. If some of those who are subject to lifetime notification requirements no longer pose any significant risk of committing further sexual offences and it is possible for them to demonstrate that this is the case, there is no point in subjecting them to supervision or management or to the interference with their article 8 rights involved in visits to their local police stations in order to provide information about their places of residence and their travel plans. Indeed subjecting them to these requirements can only impose an unnecessary and unproductive burden on the responsible authorities. We were informed that there are now some 24,000 ex-offenders subject to notification requirements and this number will inevitably grow."
  31. As to the central issue, Lord Phillips concluded:
  32. "56. No evidence has been placed before this court or the courts below that demonstrate that it is not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who pose no significant risk of re-offending. It is equally true that no evidence has been adduced that demonstrates that this is possible. This may well be because the necessary research has not been carried out to enable firm conclusions to be drawn on this topic. If uncertainty exists can this render proportionate the imposition of notification requirements for life without review under the precautionary principle? I do not believe that it can.
    57. I have referred earlier to a number of situations in which the degree of risk of re-offending has to be assessed in relation to sexual offenders. I think that it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified. As the courts below have observed, it is open to the legislature to impose an appropriately high threshold for review. Registration systems for sexual offenders are not uncommon in other jurisdictions. Those acting for the first respondent have drawn attention to registration requirements for sexual offenders in France, Ireland, the seven Australian States, Canada, South Africa and the United States. Almost all of these have provisions for review. This does not suggest that the review exercise is not practicable."
  33. Mr Southey QC submits that the position in the present case is no different from that in F. It is accepted that disclosure under the 1997 Act serves to promote an important goal of public policy, namely, safeguarding children and vulnerable adults. Disclosure interferes with Article 8 rights, for the reasons stated in L. Such disclosure would be proportionate in a particular case only if it were relevant to the decision for which disclosure was required. In a particular case disclosure of, for example, a warning given for a relatively trivial offence committed many years ago by a child who has not subsequently re-offended would be likely to have no, or at least no more than negligible, relevance to the decision whether, say, that person (now an adult) could, even on the highest standards of protection, be safely employed to work with children. However, under the 1997 Act there is no mechanism at all for reviewing whether the information relating to a warning given in the circumstances outlined continues to serve any useful purpose in terms of the relevant public policy. Disclosure of such information would, therefore, simply interfere with Article 8 rights without advancing any legitimate public interest. In the absence of any review mechanism that would enable information, no longer relevant, to be withheld, and that would prevent the unjustified interference with Article 8 rights, the legislation cannot be proportionate.
  34. In my view, this is a very powerful argument, and it gains support from relatively recent developments in the public sphere regarding what should constitute appropriate disclosure under the 1997 Act.
  35. On 22 October 2010, the SSHD established the Criminal Records Review. The terms of reference were:
  36. "The Criminal Records Review will examine whether the criminal records regime strikes the right balance between respecting civil liberties and protecting the public. It is expected to make proposals to scale back the use of systems involving criminal records to commonsense levels."
  37. The Review has been conducted by Mrs Sunita Mason, the Independent Adviser for Criminality Information Management. Her report on the first phase of the review was published on 11 February 2011.
  38. On pages 25 and 29 of her report Mrs Mason highlights the detrimental impact that disclosure may have: an employer on receipt of a disclosure certificate that contained criminality information may use it as a reason to de-select – indeed some employers may believe that a "clean" certificate is a sine qua non of a job offer. In a tight labour market such de-selection may be convenient, but it may be very unfair to the applicant and an inefficient means of discriminating between candidates.
  39. Mrs Mason went on:
  40. "There is a reasoned argument that, in many cases, the disclosure of conviction information that is both minor and disproportionate places an unnecessary burden on the lives of individuals. This is particularly so, where the conviction became spent many years earlier and the individual poses no significant public protection risk to children or vulnerable adults (for example, a shoplifting offence from 27 years ago)."
  41. Mrs Mason stated that "she was keen to ensure that the Government implements an appropriate form of filtering in the CRB process that removes conviction information that is undeniably minor and which cannot be classed as anything other than old." She refers to the setting up, on her initiative, of the Independent Advisory Panel for the Disclosure of Criminal Records, which has considered and recently reported on a mechanism to filter old and minor convictions from being disclosed through criminal record checks. Mrs Mason's fifth recommendation is for a filter system, which would be both balanced and easily understood by all interested parties.
  42. This recommendation echoes Mrs Mason's earlier review, dated March 2010 ("A Balanced Approach") on retaining and disclosing criminal records (see paragraphs 19, 20, 82, 88-100 of that review).
  43. It appears to me that the views of the Government's own independent expert on this matter are not out of line with the general practice of the criminal courts. For the purposes of the bad character provisions of the Criminal Justice Act 2003 experienced criminal judges regularly "filter" ancient convictions as having no relevance to, or as having potentially a disproportionately prejudicial effect on, the resolution of any relevant issue in the trial. Indeed, the prosecution often does its own "sifting" and makes no application for the admission of the material. This is particularly so if the offence in question was committed when the accused was a child. In relation to the "dangerousness" provisions of the 2003 Act (when ex hypothesi the defendant has committed a serious specified sexual or violent offence), the Court of Appeal has repeatedly stressed that children develop and mature, and that it is important to be particularly careful and cautious in seeking in the case of children to make adverse predictions of future behaviour.
  44. The Government has Mrs Mason's recommendation under consideration. Mr John Woodcock, the Head of Criminal Records Policy within the Safeguarding and Public Protection Unit within the Home Office, in his witness statement relied on in this claim states the practical difficulties of a "filter" system:
  45. "22. Deciding which offences are "minor", and should be filtered out, is no easy task. Just picking out some offences which are self-evidently at the minor end of a scale of seriousness might be relatively straightforward, but there will be others, not chosen, which in some people's view at least are equally minor. That implies the need for a comprehensive classification of all offences as minor or not, which would be an extremely time-consuming undertaking, and more so if any intermediate categories were adopted.
    23. There are good arguments for a relationship between age and seriousness in deciding what to filter. For example, minor offences could be weeded out after 5 years and intermediate offences after 10 years, but that adds another layer of complexity.
    24. To avoid the difficulties associated with categorising each offence type individually, disposal rather than offence could be used as the main factor determining filtering. For example, all cautions could be filtered after 3 years, fines after 5 years, sentences of up to 3 years after 7 years etc. One of the attractions of this is that conceptually it is closer to the sentence-based approach taken in the broader ROA regime. However, it contains serious risks of filtering out specific instances which are clearly appropriate for disclosure. For example, there are instances where violent and sexual offences attract relatively low sentences or even where they are dealt with by way of caution. One antidote to this, would be to exclude certain offences (say those with a violent or sexual element) from ever being filtered. But again there is a problem of complexity. The number of offences in those categories is very large and they would all need to be classified.
    25. Some argue that filtering (like the broader ROA regime) should take account of "clear periods". For example, an offence might only be filtered after a defined period if the person concerned had not committed any other offences during that period (which was the approach adopted by ACPO when it advocated weeding of the PNC). This makes good sense but has the potential to make the whole system more involved and difficult to understand.
    26. Another option would be to put filtering wholly or partly on a discretionary basis. As is currently the case with "police intelligence", the police could be asked to decide on a case by case base whether a specific conviction, caution, reprimand or warning was sufficiently relevant to include in a disclosure. This carries a risk of inconsistency and there would be significant resources implications for the police, who would have to take a much greater number of discretionary decisions than they do at present in relation to "police intelligence".
    27. Finally, it is important that any filtering system should be reasonably straightforward and easy to understand, both for applicants and for those using disclosures as part of recruitment processes. It is challenging to devise a system which adequately combines effectiveness, fairness and clarity. The Secretary of State looks forward with interest to receiving the recommendations of the Panel on these questions."
  46. In some contexts an individualised approach may be wholly impracticable (see, for example, Security Industry Authority v Stewart and another [2007] EWHC 2338 (Admin), [2009] ICR 233, where Laws LJ at paragraphs 40-41 explained why an "individualised" approach was impossible in the relevant context). However, while noting the points made by Mr Woodcock, I am not persuaded that a "filter" system could not be devised that would at least remove, after an appropriate period, a caution given to a child under the age of 14 for a non-violent, non-sexual offence, where that child had subsequently committed no crimes, in circumstances where the caution could have no, or no more than negligible, bearing on his or her suitability for one of the protected categories of employment. The disclosure of the caution in such a case may well have a detrimental impact on the subject of the disclosure, within the scope of the protection of Article 8, as explained in L, which is not justified by the purpose for which disclosure is required. There may be real controversy about the categories of convictions that could be properly "filtered", and about the appropriate criteria that needed to be satisfied. However, such difficulties do not seem to me to justify the present position where there is no longer any "filter" arrangements at all, and there appear to be some cases at least, especially cautions administered to children, where disclosure would serve no useful purpose in promoting the relevant public policy.
  47. In this context it is perhaps well to remember that the age of criminal responsibility in England, although established by Parliament, is not without controversy, particularly viewed through a Strasbourg prism. Although there is no international agreement on what the age of criminal responsibility should be, the UN Committee on the Rights of the Child (2002) and the European Committee on Social Rights (2005) have urged the reform of English law. The age in Scotland has recently been increased to 12 (Justice and Licensing (Scotland) Act 2010, section 52). (For critical literature on the present position, see Smith and Hogan's Criminal Law, 13th edition, ed. David Ormerod, at 340-341). The net effect of the disclosure provisions is that a caution for a criminal offence committed at an age when many countries (including Scotland) would not even recognise criminal responsibility is disclosable throughout the lifetime of the person concerned.
  48. I have no doubt that the disclosure provisions of the 1997 Act broadly strike a fair balance between the competing interests described by Lord Neuberger in L. It is the application of these provisions in particular cases that gives me concern. I can understand that a system which admits of no exceptions for the disclosure of convictions and cautions removes, or should remove, entirely the risk that information that might be relevant is not available to the decision maker, who may as a result take a decision which, in the interests of safety, would not otherwise have been taken. But a system that allows no exceptions imposes a very heavy cost in terms of effect on the fundamental rights protected by Article 8 ECHR. I am not persuaded that the marginal benefit that a system which admits no exceptions brings to, admittedly important, competing interests is justified as a matter of proportionality when the serious detrimental effects of such a system, particularly on child offenders, are weighed in the balance. A system that permitted exceptions would probably be more prone to error, but only marginally so if the criteria for review were themselves conservative and risk averse. The consequential improvement to the protection of Article 8 rights on the other hand, would be likely to be substantial. There is also a further possible cost of the present system. If the child, and his or her parents, understand, as they should, that the acceptance of a caution creates a criminal record that will always remain with the child, and potentially affect future prospects, there may be a perverse incentive to contest the charge, a result that is also in tension with the current public policy of exposing children to the criminal justice system only if necessary. On the other hand, a system that allowed a caution to be expunged after an appropriate period of non-offending might be thought to create an efficient and sensible incentive to avoid such re-offending.
  49. However, for the reasons already given, I feel that in the light of the authority of L it is not open to me to reach the above conclusion and to declare any relevant provisions of the 1997 Act to be incompatible with Article 8 ECHR.
  50. The Challenge to the Order

  51. Under the Rehabilitation of Offenders Act 1974 ("ROA"), a warning (and a caution in the case of an adult) is deemed to be spent as soon as it is administered and thereafter the person who has received it should be treated as if he had never committed the offence in question and need not make reference to the warning in answering any question which might otherwise require its disclosure (paragraph 3 of Sch. 2 ROA). Paragraphs 3(3)-(5) provide:
  52. "(3) Where a question seeking information with respect to a person's previous cautions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority –
    (a) the question shall be treated as not relating to spent cautions or to any ancillary circumstances, and the answer may be framed accordingly; and
    (b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent caution or any ancillary circumstances in his answer to the question.
    (4) Any obligation imposed on any person by any rule of law or by the provisions of any agreement or arrangement to disclose any matters to any other person shall not extend to requiring him to disclose a spent caution or any ancillary circumstances (whether the caution is his own or another's).
    (5) A caution which has become spent or any ancillary circumstances, or any failure to disclose such a caution or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment."

    These provisions of the ROA seek to ensure that an individual is not prejudiced by having received a warning, or not having disclosed that he has received a warning, including when applying for employment.

  53. However, these provisions are subject to the Order, which removes the protection otherwise given by the ROA in specified circumstances. In particular, art. 3 of the Order excludes the effect of paragraph 3(3) of Sch. 2 ROA in the context of questions asked to assess suitability for employment in the various positions listed in the provisions of Sch. 1 to the Order; and art. 4 excludes the effect of paragraph 3(5) of Sch. 2 ROA in relation to the offices, professions, occupations and employments listed in Sch. 1.
  54. For example, in the case of a person applying to be a teacher, any question asked to him about his past conduct is to be taken at face value and, if appropriately framed, is to be regarded as relating to cautions, warnings and reprimands (which are spent under the ROA) and ancillary circumstances. A prospective employer may act upon a truthful answer to such a question which discloses details of cautions etc. An applicant may be subjected to legal liability as a result of failing to give a truthful answer to the question. Failure to give a truthful answer and to disclose a past caution, warning or reprimand may be a proper ground for rejecting an application, or disciplining or dismissing him if employment has been offered and accepted.
  55. There is plainly a close correspondence between the Order and the disclosure provisions that have already been considered. It is a pre-condition for obtaining an ECRC under section 113B of the Act that it is required for the purposes of an exempted question (as defined by the Order): see section 113B(2)(b).
  56. The correspondence is, however, not exact. Under section 113B(2)(b) the exempted question must be asked for a prescribed purpose. The various purposes are prescribed in reg. 5A of the Police Act 1997 (Criminal Records) Regulations 2002 (SI 2002/233). It is significantly narrower than the list of situations set out in the Order where exempted questions may be asked (although it does also include the purpose of assessing suitability to work with children). Furthermore, disclosure under the 1997 Act may be used only by registered persons and bodies, (see Section 120 and following of the 1997 Act and the Police Act 1997 (Registration) Regulations 2006 (SI 2006/750)). Many persons asking exempted questions cannot apply for an ECRC to check the answers because they are not registered persons or bodies. In certain situations, a person cannot be registered, for example, if they made fewer than 100 applications in the previous year (reg. 7(l)), if they have been disqualified from registration etc. Small employers may approach an umbrella registered body which is itself registered, and obtain an ECRC by that means.
  57. Notwithstanding that the correspondence is not quite exact, it seems to me that the rationale for the disclosure provisions and for the Order is the same, namely, that those who intend to employ a person to work in certain sensitive employments, in particular, with children and vulnerable adults should know, among other information, whether the person in question has a criminal record and the nature of any such record. If, in furtherance of that public interest, the state is entitled to disclose to certain prospective employers all criminal convictions, cautions and warnings, it must follow that such employers may legitimately ask applicants about such convictions etc, expect them to answer truthfully and take appropriate action in response to the answers given and to any failure to answer truthfully. It would be odd indeed if a prospective employer could not (under the Order) ask about certain cautions and warnings, but could obtain disclosure of this information under the 1997 Act (on the basis that it was needed to evaluate the prospective employee's suitability). It could also give rise to undesirable confusion: a prospective employee could answer negatively if questioned about criminal convictions (including old cautions or warnings putatively now irrelevant under the Order), only to find that such convictions were disclosed to the employer under the 1997 Act and his honesty possibly brought into question. Furthermore, certain employers are bound by law to apply for an ECRC in respect of prospective employees. State schools and NHS employers are good examples: see, for example, regulation 123(3) of the School Staffing (England) Regulations 2009 (SI 2009 No. 2680). In that case the anomaly would be more acute: the state school would be obliged to obtain information under the 1997 Act, on the basis that it was essential for the relevant assessment, that could not be deployed under the Order for the purpose of making the assessment.
  58. All parties to these proceedings accept that there is a close inter-relationship between the disclosure provisions of the 1997 Act and the Order. Mr Southey QC does not, for example, suggest that the Order is disproportionate because it permits certain employers to ask questions that in their case cannot be supported by an ECRC. The ROA falls within the responsibility of the Ministry of Justice. The Ministry has consulted on its reform: see Breaking the Cycle. Effective Punishment, Rehabilitation and Sentencing of Offenders (cm 7972, December 2010). The Ministry was, inter alia, "looking at how offenders with minor convictions a long time in their past, but who are subject to full disclose of their convictions, might be treated" (paragraph 118). On 3 February 2012, after the hearing of this claim, the Ministry announced planned reductions in respect of periods of rehabilitation. However, it appears from the terms of the Press Release that the legislative amendments to achieve the reductions will not change the position as regards disclosure in the excepted categories of sensitive employment, etc.
  59. In these circumstances I do not believe that there is any real independent issue about the legality of the Order under Article 8 ECHR. The conclusion must be the same. However, I should perhaps add that the reverse argument does not necessarily apply. In other words, even if it were disproportionate under Article 8 ECHR for the state to disclose, say, a warning long ago given to a child for a minor criminal matter, it would not automatically be an infringement if the state permitted a private employer to enquire about all criminal convictions, to insist on truthful answers and to take appropriate action in response to the answers given. Mr Coppel forcefully submitted that there is no Strasbourg or domestic authority to the effect that a Convention state is required by Article 8 (or any other provision of the ECHR) to have a scheme (such as the ROA) for rehabilitation of offenders either generally, or by legislating in particular so as to permit untruthful answers to be given to questions asked by prospective employers. An attack on the Order as such pre-supposes that the state must take positive action to intervene in relations between private individuals (in the case of private employers) and between private individuals and state employers, in order to permit individuals to conceal information about their past, and prevent employers from refusing to employ them, or taking disciplinary action against them, on grounds of failing to give truthful answers to questions asked about previous cautions, warnings and reprimands.
  60. The issue of positive obligations or state action is a difficult one. I have found the general discussion in Janis, Kay and Bradley, European Human Rights Law, Third Edition 2008, at 389-403, which sets the issue in a wider international context, particularly helpful. Strasbourg has most recently considered the issue in Mosley v UK (2011) 53 EHRR 30, where it was argued that the UK had a positive obligation to require the media to give advance notification of publication of private information. The Court stated:
  61. "106. It is clear that the words "the right to respect for … private … life" which appear in Article 8 require not only that the State refrain from interfering with private life but also entail certain positive obligations on the State to ensure effective enjoyment of this right by those within its jurisdiction (see Marckx v Belgium, 13 June 1979, BAILII: [1979] ECHR 2, paragraph 31, Series A no. 31). Such an obligation may require the adoption of positive measures designed to secure effective respect for private life even in the sphere of the relations of individuals between themselves (see Von Hannover v Germany, no. 59320/00, BAILII: [2004] ECHR 294, paragraph 57, ECHR 2004-VI; and Stubbings and Others v the United Kingdom, 22 October 1996, BAILII: [1996] ECHR 44, paragraphs 61-62, Reports of Judgments and Decisions 1996-IV).
    107. The Court emphasises the importance of a prudent approach to the State's positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to secure its respect (Karakó v Hungary, no. 39311/05, BAILII: [2009] ECHR 712, paragraph 19, 28 April 2009). The choice of measures designed to secure compliance with that obligation in the sphere of the relations of individuals between themselves in principle falls within the Contracting States' margin of appreciation (see, inter alia, X and Y v the Netherlands, 26 March 1985, BAILII: [1985] ECHR 4, paragraph 24, Series A no. 91; and Odièvre v France [GC], no. 42326/98, BAILII: [2003] ECHR 86,, paragraph 46, ECHR 2003-III). However, this discretion goes hand in hand with European supervision (see, mutatis mutandis, Observer and Guardian v the United Kingdom, 26 November 1991, paragraph 59(c), Series A no. 216; and Lindon, Otchakovsky-Laurens and July v France [GC], nos. 21279/02 and 36448/02, BAILII: [2007] ECHR 836, paragraph 45, ECHR 2007-XI).
    108. The Court recalls that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be accorded to the State in a case in which Article 8 of the Convention is engaged. First, the Court reiterates that the notion of 'respect' in Article 8 is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: bearing in mind the diversity of the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case (see Sheffield and Horsham v. the United Kingdom, 30 July 1998, BAILII: [1998] ECHR 69, § 52, Reports 1998 V). Thus Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Handyside v. the United Kingdom, judgment of 7 December 1976, BAILII: [1976] ECHR 5, Series A no. 24, p. 22, § 48; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, BAILII: [1985] EHRR 471, § 67, Series A no. 94; Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 VIII, BAILII: [2003] ECHR 338; and Armonienè, cited above, § 38). In this regard, the Court recalls that by reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than the international judge to give an opinion on how best to secure the right to respect for private life within the domestic legal order (see, mutatis mutandis, Handyside, cited above, § 48; A, B and C v. Ireland [GC], no. 25579/05, § 232, 16 December 2010, BAILII: [2010] ECHR 2032; and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011, BAILII: [2011] ECHR 66).
    109. Second, the nature of the activities involved affects the scope of the margin of appreciation. The Court has previously noted that a serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 77, ECHR 2002 VI, BAILII: [2002] ECHR 588). Thus, in cases concerning Article 8, where a particularly important facet of an individual's existence or identity is at stake, the margin allowed to the State is correspondingly narrowed (see Evans v. the United Kingdom [GC], no. 6339/05, BAILII: [2007] ECHR 264, § 77, ECHR 2007 IV; and A, B and C v. Ireland [GC], cited above, § 232). The same is true where the activities at stake involve a most intimate aspect of private life (see, mutatis mutandis, Dudgeon v. the United Kingdom, 22 October 1981, BAILII: [1981] ECHR 5, § 52, Series A no. 45; and A.D.T. v. the United Kingdom, no. 35765/97, BAILII: [2000] ECHR 402 , § 37, ECHR 2000-IX).
    110. Third, the existence or absence of a consensus across the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, is also relevant to the extent of the margin of appreciation: where no consensus exists, the margin of appreciation afforded to States is generally a wide one (see Evans, cited above, § 77; X, Y and Z v. the United Kingdom, 22 April 1997, BAILII: [1997] ECHR 20, § 44, Reports 1997 II; and Dickson v. the United Kingdom [GC], no. 44362/04, BAILII: [2007] ECHR 1050 , § 78, ECHR 2007 XIII). Similarly, any standards set out in applicable international instruments and reports are relevant to the interpretation of the guarantees of the Convention and in particular to the identification of any common European standard in the field (see Tanase v. Moldova [GC], no. 7/08, § 176, ECHR 2010 ...).
    111. Finally, in cases where measures which an applicant claims are required pursuant to positive obligations under Article 8 would have an impact on freedom of expression, regard must be had to the fair balance that has to be struck between the competing rights and interests arising under Article 8 and Article 10 (see MGN Limited, cited above, § 142), rights which merit, in principle, equal respect (Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009, BAILII: [2009] ECHR 1425; compare and contrast Sunday Times v. the United Kingdom (no. 1), 26 April 1979, BAILII: [1979] ECHR 1, § 65, Series A no. 30).
  62. If I had had to decide this issue – whether the Order as such was unlawful under Article 8 ECHR – I would not have been persuaded that the state had the positive obligation asserted by the Claimant. The factors enumerated in Mosley do not indicate that the present terms of the Order would be a suitable candidate for a novel positive obligation. The Order does not concern an important facet of personal identity, or an intimate aspect of private life. There does not appear to be any international convention that would require a state to exempt offenders from having to reveal information about crimes committed when they were children, and the UK's scheme for rehabilitation under the ROA does not seem obviously to lag behind similar arrangements in other convention states. That conclusion is supported by domestic case law: see R (Pearson) v DVLA [2002] EWHC 2482 Admin at paragraph 15; KJO v XIM [2011] EWHC 1768 QB, at paragraph 19.
  63. In conclusion, I feel constrained by binding authority to conclude that the challenged provisions of the 1997 Act are compatible with Article 8 ECHR, although if I had not been so constrained I would have found that the present system that allows no exceptions and provides no mechanism for review was disproportionate and not compatible with Article 8. It also follows from that conclusion that the provisions of the Order are also lawful. In these circumstances, I dismiss this application for judicial review, albeit with some reluctance. The issue is one of general importance that fully deserves to be considered by a higher court, and I had already indicated that I would give permission to the unsuccessful party to appeal to the Court of Appeal. In the light of that indication the terms of the consequential order in the claim may be capable of agreement between the parties without the need for further attendance. I am most grateful to all counsel for their clear and helpful written and oral submissions.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII