Supreme Court Reinforces Privacy Rights in Criminal Record Disclosure: Implications for the Rehabilitation of Offenders Act

Introduction

The case of T & Anor, R (on the application of) v. Secretary of State for the Home Department & Anor ([2014] UKSC 35) marks a significant development in the intersection of criminal record disclosure and privacy rights under the European Convention on Human Rights. This comprehensive commentary delves into the background, key issues, and the Supreme Court's judgment, which scrutinizes the compatibility of certain provisions of the Rehabilitation of Offenders Act 1974 and associated orders with Article 8 of the Convention.

Summary of the Judgment

The applicants, T and JB, challenged the disclosure of their spent cautions under the Rehabilitation of Offenders Act 1974 ("the 1974 Act") and the associated Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 ("the 1975 Order"). T, who had received cautions at the age of 11 for bike theft, and JB, cautioned at 41 for petty theft, argued that their forced disclosure infringed their Article 8 rights to respect for private life.

The Court of Appeal had previously declared parts of the 1975 Order incompatible with Article 8, stating that the mandatory disclosure of spent cautions was overly broad and disproportionate. The Supreme Court upheld the Court of Appeal's decision regarding the Police Act 1997 but found dissenting reasoning in declaring the entire 1975 Order ultra vires (beyond legal power or authority). Ultimately, the Supreme Court dismissed the Secretaries of State's appeal against the incompatibility declaration for the Police Act but disagreed with declaring the 1975 Order ultra vires, deeming it an inappropriate remedy.

Analysis

Precedents Cited

The judgment extensively referenced previous cases and international instruments that shaped the Court's understanding of privacy rights in the context of criminal record disclosure:

• Rotaru v Romania (2000) 8 BHRC 449: Established that systematic collection and storage of personal data by authorities can fall within the scope of private life under Article 8.
• Sidabras v Lithuania (2004) 42 EHRR 104: Highlighted that interference with private life through employment vetting measures must be proportionate.
• MM v United Kingdom: Emphasized the necessity of clear legislative frameworks and safeguards against arbitrary data disclosure.
• Rehabilitation of Offenders Act 1974 (1975 Order): Central to the case, governing exceptions to the non-disclosure of spent convictions and cautions.
• Human Rights Act 1998: Provided the framework for assessing compatibility with Convention rights.

Legal Reasoning

The Supreme Court's reasoning centered on the balance between public safety and individual privacy rights. It underscored that while society has a legitimate interest in vetting individuals for sensitive positions, such as those involving contact with children, these measures must be proportionate and not infringe excessively on personal privacy.

The Court affirmed that automatic and indiscriminate disclosure of spent cautions without consideration of their relevance or severity constitutes an unjustifiable interference with Article 8 rights. It emphasized the need for legislative frameworks to include safeguards that prevent disproportionate disclosure and ensure that only relevant information is shared.

Importantly, the Court rejected the attempt to declare the entire 1975 Order ultra vires, recognizing that such a remedy would have far-reaching implications, including the invalidation of millions of criminal record certificates. Instead, it maintained that specific aspects of the Police Act 1997 were incompatible while allowing the 1975 Order to be amended to better align with human rights standards.

Impact

This judgment has profound implications for employment practices and the administration of criminal record disclosures in the UK. It reinforces the necessity for:

• Legislative amendments that ensure disclosure requirements under the Rehabilitation of Offenders Act are proportionate and respect individual privacy.
• Implementation of filtering mechanisms to prevent the disclosure of irrelevant or minor cautions, especially those acquired during adolescence.
• Enhanced scrutiny of subordinate legislation to guarantee compliance with human rights obligations.

Moreover, the decision clarifies the limitations of judicial remedies concerning subordinate legislation, asserting that declaring such orders ultra vires is not always a permissible or appropriate response to human rights breaches.

Complex Concepts Simplified

Spent Convictions and Cautions

Under the Rehabilitation of Offenders Act 1974, certain criminal convictions become "spent" after a specified period, meaning individuals are no longer legally required to disclose them in most circumstances, such as job applications. Cautions, akin to warnings provided to minors, are also treated similarly.

Article 8 of the European Convention on Human Rights

Article 8 safeguards the right to respect for private and family life. Any interference by public authorities must be "in accordance with the law" and "necessary in a democratic society" for legitimate aims like national security or public safety.

Ultra Vires

"Ultra vires" refers to actions taken beyond the scope of legal authority. Declaring a piece of legislation ultra vires means it is deemed void or invalid because it exceeds the powers granted by the parent statute.

Declaration of Incompatibility

Under the Human Rights Act 1998, courts can issue a declaration that a piece of legislation is incompatible with the European Convention on Human Rights, prompting Parliament to amend the law.

Conclusion