Criminal record checks breach the right to privacy

R (on the application of T) v Greater Manchester Chief Constable & Ors [2013] EWCA Civ 25 (29 January 2013) Summary

The UK Court of Appeal recently held that disclosure of a person’s convictions or police cautions can breach their right to privacy under the European Convention on Human Rights.

Facts

Three applicants sought declarations that information provided on enhanced criminal record certificates (“ECRCs”) breached their right to privacy under article 8 of the European Convention on Human Rights, and that the laws regulating the ECRCs were incompatible with the Convention.

Applicant 1: T

When T was 11 years of age, he received two warnings from police in connection with two stolen bicycles. When he was 17, he applied for a part-time job and requested an ECRC, which disclosed these warnings. He requested that police “step down” these warnings, which would prevent disclosure to third parties, and the police agreed. A later case found that the practice of “stepping down” records was ultra vires, so the warnings remained on T’s record without his knowledge, until he requested another ECRC at the age of 19 as part of his application to a sports science degree. He sought judicial review, but at first instance his application was unsuccessful. He appealed to the Court of Appeal.

Applicant 2: JB

In 2001, JB left a drugstore without paying for a set of false nails – she said that it was an honest mistake, but the attending police issued a caution. In 2009, JB sought employment in the aged care sector. She applied for an ECRC, which revealed the caution, and she was told that she would not be offered employment “as her criminal record rendered her inappropriate for work with vulnerable people” (at [22]). She sought judicial review, and at first instance the Court held that article 8 was engaged, but that the interference with her rights was justified as it protected people with whom JB might be working. She appealed to the Court of Appeal.

Applicant 3: AW

In 2003, AW and her boyfriend attempted a carjacking, and her boyfriend stabbed the driver. When arrested, AW pleaded guilty to manslaughter and robbery, and was sentenced to five years’ imprisonment. At the time of this appeal, AW wanted to serve in the Army, but her criminal record prevented her enlistment. She sought judicial review; at first instance, it was held that her article 8 rights were not engaged or, alternatively, if they were engaged, the interference was proportionate and justified. She appealed to the Court of Appeal.

Decision

The Court considered that disclosure of contact with the justice system on ECRCs interferes with the right to privacy in two ways:

• It involved the disclosure of sensitive information, which the subjects wished to keep to themselves.
• Disclosure was liable to affect the subject’s ability to obtain employment and to form relationships with others.

The Court then considered the justification under article 8(2), which prohibits interference “except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court accepted that the interference with article 8 rights pursued both “(i) the general aim of protecting employers and, in particular, children and vulnerable adults who are in their care and (ii) the particular aim of enabling employers to make an assessment as to whether an individual is suitable for a particular kind of work” (at [37]). But the Court found that the statutory regime requiring the disclosure of all convictions and cautions relating to recordable offences “is disproportionate to that legitimate aim” (at [37]).

The Court’s “fundamental objection” to the current scheme was that it failed to control the disclosure of information by reference to whether it is “relevant to the purpose of enabling employers to assess the suitability of an individual for a particular kind of work” (at [38]). The Court rejected the suggestion that employers could be left to assess the relevance of any disclosed convictions or cautions, given the difficulty in interpreting the information on an ECRC and a lack of resources and training to understand the information, or use it correctly and fairly (at [44]-[46]).

The Court concluded that the relevant law was incompatible with article 8, and that earlier cases (such as R(X) and R(L)) which considered the recording of police intelligence had not set a binding precedent which prevented a declaration of incompatibility.

The Court also rejected the respondents’ submission that declaring the regulations incompatible would require the state to take positive action to intervene in the relationships between employers and employees to permit employees to conceal information or prevent employers from refusing to employ people on the basis of disclosures. The Court identified that the state has intervened in employer/employee relationships through several regulatory schemes, and the proper question to be asked here is whether the interference seeks a fair balance between the interests of employers (and children and vulnerable people) and the rights of people seeking employment.

Balancing those interests, the appeals of T and JB were allowed, and AW was refused. The law and the regulation were declared incompatible.

Commentary

In Australia, criminal record checks have become a standard part of the recruitment process. Individuals with a criminal record will often self-exclude from applying for positions that require a criminal record check, as they believe that the existence of a criminal record – no matter how irrelevant, minor or old – will prevent them from being fairly considered for the position.

Employers will often not consider applicants with a criminal record. This may be appropriate in some circumstances, where a criminal record will be relevant to a job a person is seeking or the service they are trying to access. However, it is inappropriate and unfair, and contrary to aims of rehabilitation and reintegration, to allow people to be discriminated against on the basis of their irrelevant criminal record.

Spent convictions schemes are set out in legislation and provide that after a qualifying period, convictions are permanently removed from a person’s criminal record. In most circumstances, these regimes operate such that no obligation is imposed on job applicants or employees to disclose the existence of a spent criminal record. Spent convictions also do not appear on a criminal record check. All states and territories, except Victoria and South Australia, have a spent convictions scheme.

In some Australian states, there is legislation that prohibits discrimination on the ground of “irrelevant criminal record”. However, Victoria’s equal opportunity laws do not contain this protection, and while Commonwealth legislation prohibits discrimination on a number of grounds, including criminal record, there is no enforcement power to remedy a breach and no power to award compensation.

Hence, there is little protection in Victoria against criminal record discrimination.

However, the UK Court of Appeal’s interpretation of the right to privacy, also contained in section 13 of the Charter on Human Rights and Responsibilities Act 2006 (Vic), means that the Charter right may extend to improper disclosures on police record checks. Read this way, the Charter may provide a useful protection to prevent discrimination and ensure that a criminal record does not punish a wrongdoer indefinitely.

The decision is available online at http://www.bailii.org/ew/cases/EWCA/Civ/2013/25.html.

James Farrell is Director of the Queensland Association of Independent Legal Services, and a lecturer at the Deakin University School of Law.