The Court of Appeal, Civil Division, considered a number of appeals involving individuals with previous criminal convictions/cautions/reprimands, the Metropolitan Police Commissioner, the Chief Constable of Surrey Police and the Secretaries of State for Justice and the Home Department. A number of determinations were made in relation to the statutory scheme in relation to the disclosure of convictions and the retention in individual cases by the police of caution, reprimands and other material, and whether the revised scheme complies with art 8 of the European Convention of Human Rights.
R (on the application of P) v Secretary of State for the Home Department and another and other cases  EWCA Civ 321
Police – Disclosure of information – Enhanced criminal record certificate – Right to respect for private and family life – Statutory scheme for rehabilitation of offenders – Convictions, cautions, warnings and reprimands in respect of certain offences deemed spent after specified periods of time – Statutory scheme for disclosing records of convictions and cautions – Whether provisions for disclosure breaching right to respect for private and family life – Whether records of certain cautions, reprimands or convictions ought to be expunged from records – European Convention on Human Right, art 8.
The Court of Appeal heard a number of linked appeals together involving individuals; P, G, W and MK, as well as the Commissioner for the Metropolitan Police, The Chief Constable of Surrey Police and the Secretaries of State for the Home Office and for Justice. The appeals dealt with two principles of social policy. The first principle focused on the rehabilitation of offenders, and was aimed at allowing those who had come into conflict with the criminal law to be able, in appropriate circumstances, to put their pasts behind them and conduct their lives without further reference to what they had done in the past. The second principle was the requirement that the public be kept safe from those who, by reason of their past behaviour, extending beyond convictions, might remain a risk. The relevant legislation was that which gave rise to the revised scheme for the disclosure of criminal records, brought into effect was the Police Act 1997 (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013, SI 2013/1200; and the Rehabilitation of Offenders Act (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013, SI 2013/1198. In each of the linked cases, parties had brought appeals following determinations with respect to the disclosure of some of the party’s criminal past, including criminal records, cautions or reprimands (for details of each appeal, see - of the judgment).
The present cases challenged the adequacy of the amendments to the statutory scheme, such challenges being based on the argument that the discrimination that had been introduced by the scheme was insufficient, and inadequate, to address the failure of the scheme to comply with Article 8 of the European Convention on Human Rights (art 8). As an alternative to challenging the disclosure of cautions in relation to affected adults and reprimands or warnings in relation to children, it was also contended that the retention of data which comprised that information itself represented a breach of art 8 and that, as a consequence, a failure to expunge or delete the caution, reprimand or warning on reasonable request was actionable. Consideration was given to the Rehabilitation of Offenders Act 1974 (the 1974 Act) and the Police Act 1997 (the 1997 Act).
The court ruled:
(1) The proper approach to the balance between the rights of individuals to put their past behind them, and what was necessary in a democratic society was to go back to the purpose for which criminal record certificates (CRCs) or enhanced criminal record certificates (ECRCs) were required and provided. Given the information that could be put into an ECRC, which need be no more than ‘soft intelligence’, Parliament had made it clear that it was not an answer to the need to protect the public that references should be limited to criminal convictions. Neither was the contrary argued. Similarly, it was not necessarily sufficient to filter by lapse of time or, indeed, penalty; at the time, there might have been many reasons for a particular approach to a case which did not reduce the need for public protection. If there was to be a filter beyond a bright line position, it could only be because of the realistic possibility that, in certain cases, it was demonstrable that issues of public protection were simply not engaged. The difficulty in identifying a filter, however, was that depending on the employment sought, different public interests might be engaged, Different considerations might also apply depending, for example: on the nature of the offence; the disposal (whether out of court, fixed penalty or sentence and, if the latter, its nature); age at the time of the offence; and lapse of time since the offence; or since the time it was spent under the 1974 Act. Having said that, however, ascribing weight to those features, it would not necessarily be difficult to fashion a system which did not depend on individual review, but which would allow material which would not otherwise be included in a CRC, because of the filter, to be included in a ECRC, and, thus, subject to possible challenge through the relevant chief officer of police, should the applicant wish to challenge its relevance (see , , ,  of the judgment).
It was not for the court to fashion a solution and, ultimately, it was a matter for the legislature to ascertain whether, as a matter of practice rather than legal theory, what system was appropriate. It had to be appreciated, however, that without some mechanism to ensure that disclosure was proportionate and linked to the protection of the public (therefore being necessary in a democratic society), it as difficult to see how challenges of the type raised in the present cases could be avoided. It was not that the concept of the revised scheme necessarily offended art 8, but it might be that in its operation in individual cases, it did so. If left to the courts as the scheme was presently devised, it would generate many challenges which would require resolution on a case by case basis: such an approach could not possibly be in the public interest (see  of the judgment).
(2) An additional or alternative way of approaching the same problem was to provide mechanism whereby misconduct at the least egregious end of the spectrum (not involving a criminal conviction) could be expunged from whatever records were kept. A National Record Deletion Unit had been established to co-ordinate requests for record deletion intended primarily with the consequences of where biometric information and Police National Computer record have come into being where it was later learnt, for example, that there had been no crime, the individual was eliminated from the inquiry or there had been a judicial recommendation to that effect. Included, however, was ‘incorrect disposal’ or the product of review within the criminal justice process (for example, the withdrawal of a caution) and, of particular significance, where there was a wider public interest to do so. In that way, the law has sought to deal with the balance between the public interest, and offending that ‘recedes into the past’ becoming part of the person’s private life, thereby breaching art 8 rights. It was important to underline, however, that it was a balance, for such interference might be justified in the interests of public safety for the prevention of crime or for the protection of the rights and freedoms of others. Not only did this policy deal with retention of materially lawfully seized but which ought to no longer be retained, those options also provided a degree of elasticity to the previously more rigid police deletion policy in relation to out of court disposals. The absence of any mechanism to challenge a decision, however, created the risk that those who wished to do so would be driven to judicial review (see , - of the judgment).
In the circumstances, the appeals of the Secretaries of State in P and G would be dismissed. P’s cross appeal would also be dismissed. Permission to appeal the challenge by G to the refusal to expunge the reprimands would be refused. W’s appeal would be allowed. MK’s appeal would be dismissed (see  of the judgment).
S and Marper v United Kingdom (Applications 30562/04 and 30566/04)  All ER (D) 56 (Dec) applied; R (on the application of L) v Metropolitan Police Comr  All ER (D) 296 (Oct) applied.
Per curiam: ‘I repeated that there is nothing in this judgment that requires the adoption of a bespoke system providing an individual right of review; devising a filter system which ensures that cases that are at the margin and no longer require disclosure may be entirely feasible. Alternatively, some filter with a mechanism for review of the type that applies to removal from the Sex Offender Register may equally be practicable and not unduly demanding. Decisions of this nature, however, are not for the court. Nothing that I have said should be taken to be prescriptive of the way in which the executive, and the legislature, address the way more finely to balance the individual Article 8 rights of individuals to put their past behind them, and the entirely legitimate requirements of a democratic society to ensure that the public are kept safe from those who, by reason of their past behaviour (extending beyond convictions), might remain a risk’ (see  of the judgment).
James Eadie QC, Kate Gallafent QC and Naina Patel (instructed by the Government Legal Department) for the Secretaries of State for the Home Department and for Justice.
Hugh Southey QC and Nick Armstrong (instructed by Liberty) for P.
Tim Owen QC and Quincy Whitaker (instructed by Hodge, Jones & Allen) for G.
Alex Offer (instructed by Minton Morrill) for W.
Anne Studd QC and Robert Talalay (instructed by Weightmans) for the Chief Constable of Surrey Police.
Al Mustakim (instructed by Capital Solicitors) for MK.
Alison Hewitt (instructed by Directorate of Legal Services, New Scotland Yard) for the Metropolitan Police Commissioner.
Rasheed Sarpong Barrister.