In two recent cases the Court of Appeal considered the application of article 8 (the right to respect for private and family life) to Disclosure and Barring Service (DBS) checks. Both considered the interface of two important rules of public policy: an individual’s right to privacy in relation to events which have occurred in the past; and the public’s right to protection from harm through the regime for the disclosure of criminal records in relation to those working in certain professions, including with children and vulnerable adults.
In R (on the application of P) v The Secretary of State for the Home Department  EWCA Civ 321 the Court of Appeal considered the revised statutory scheme for the disclosure of criminal records and, in particular, whether it appropriately balances the aim of protecting the public with an individual’s right to a private life. The court found the system to be unlawful in certain respects.
The regime was amended in 2013 following the Supreme Court case of R (T & others) v Chief Constable of Greater Manchester & others  UKSC 35. It held that the previous scheme, which provided for the disclosure of all convictions and cautions whether current or spent and whatever the nature of the offence to which they related, was indiscriminate and did not strike the correct balance between upholding civil liberties and protecting the public.
Following the amendments, the scheme no longer requires the disclosure of every conviction and caution. Instead, it only requires disclosure of spent convictions in certain circumstances, for example sexual offences, ABH and offences where an individual has two or more convictions.
The Court of Appeal held that certain aspects of the revised scheme were not ‘in accordance with law’, in particular:
The multiple convictions rule, whereby any spent conviction where the person has more than one conviction is disclosable, was held to be indiscriminate because it would apply automatically irrespective of the nature of the offence, the disposal of the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought. In making its decision, the court rejected the government’s argument that it would not be possible to have a mechanism for assessing proportionality of the disclosure on a case-by-case basis.
The specified offences rule, which requires disclosure of any spent conviction or caution in respect of certain specified offences, was held to be insufficiently calibrated to ensure proportionality of the interference with article 8 rights, even though the court noted that the rule draws some distinctions in types of offence. The court held that the disclosure of an ABH conviction committed 31 years previously was not proportionate or necessary in a democratic society, and could not have any relevance to the risk that individual posed to the public.
The court also held 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 was difficult to see how challenges of the type raised in the instant cases could be avoided. This led the court to conclude that while the concept of the scheme did not necessarily breach article 8, it may amount to a breach when applied to certain cases where the particular interference is disproportionate.
The court held that the disclosure of an ABH conviction committed 31 years previously was not proportionate or necessary in a democratic society
The secretary of state has been granted permission to appeal to the Supreme Court so it remains to be seen whether the government will be compelled to reconsider the statutory scheme.
In R (on the application of SD) v Chief Constable of North Yorkshire  EWCA Civ 1838 the Court of Appeal considered whether the chief constable had correctly exercised his discretion under the current DBS regime, particularly when striking the balance between the risk of non-disclosure to the rights and interests of vulnerable groups and the rights of the individual.
The case concerned an application by the appellant for an Enhanced Criminal Record Certificate (ECRC) in relation to a job working with children. The information to be disclosed in an ECRC is information which the chief constable of the relevant police force believes ‘might be relevant’ and ‘ought to be included’. It can include allegations about criminal or other behaviour which might not have been substantiated, whether in the courts, in regulatory or disciplinary proceedings or otherwise.
The chief constable decided to disclose allegations that the appellant had made sexual comments in the presence of students under his supervision who were aged between 17 to 24. The appellant challenged the disclosure by way of judicial review, on the basis that it disproportionately interfered with his right under article 8 to respect for his private life. The appellant’s case was that the inclusion of the allegations did not strike the right balance as they were: (a) not serious in nature; (b) not reliable; (c) four years old; and (d) their inclusion had the potential to seriously damage his career and life prospects.
The chief constable’s decision was upheld by the Administrative Court on the basis that, although it was an interference with the applicant’s article 8 rights, it was a proportionate response to the legitimate aim of protecting children or vulnerable adults with whom he would work.
However, the Court of Appeal held that the disclosure of this information without also disclosing the Independent Safeguarding Authority’s (ISA) investigation into the matter and subsequent decision not to place him on a barred list was a disproportionate interference with the appellant’s article 8 rights.
The ISA’s decision regarding the claimant indicated that they considered him to be not unsuitable to work with children. This information was relevant to the chief constable’s decision and should have been considered when balancing the rights of the claimant against the rights and interests of the children. To omit this piece of information from the disclosure failed to give a complete picture of the claimant’s relevant history. Including a careful reference to the ISA decision would have made an employer aware of all the material facts and assisted it in making a fair, informed and balanced decision on employment.
This clear example of failing to take a relevant factor into account meant that the chief constable’s decision was held to be unlawful and was quashed.
The decision is a useful reminder to public decision-makers to ensure that all relevant factors are considered, especially when taking decisions in relation to the disclosure of sensitive information where there is an interference with an individual’s right to privacy. As this case demonstrates, one piece of information may tip the balance one way or the other.
Melanie Carter is partner and head of public & regulatory at Bates Wells Braithwaite. Claire Whittle is senior associate.