Criminal Records and the Right to Privacy

R (on the application of L) v Commissioner of Police of the Metropolis [2009] UKSC 3 (29 October 2009)

The United Kingdom Supreme Court has held that decisions to release information stored in public records about an individual’s criminal convictions, including non-conviction information, will always engage art 8 of the European Convention of Human Rights.  Accordingly, when deciding whether to release information under s 115 of the Police Act 1997 for the purposes of an enhanced criminal record certificate, decision makers must consider whether the disclosure of the information is likely to interfere with the applicant’s private life, and, if so, whether that interference can be justified.

Facts

Through an employment agency the appellant was hired to supervise children at a secondary school.  In accordance with company policy, the employment agency applied for an enhanced criminal record certificate (‘ECRC’).

Section 115 (now section 113B) of the Police Act 1997 requires the Secretary of State to issue an ECRC to applicants who satisfy the prescribed criteria.  Sections 115(6) and (7) provide that an ECRC is a certificate which gives ‘the prescribed details of every relevant matter in relation to the applicant which is recorded in central records’.  Information contained in central records includes records of convictions as well as cautions.  Prior to issuing an ECRC the Secretary of State must ask the relevant police force to provide any information which in the chief officer’s opinion is (a) relevant and (b) ought to be included in the certificate.  Accordingly, non-conviction information, for example, allegations and non-criminal activity, may be disclosed.

In the appellant’s case, the ECRC issued after the police check did not show any criminal convictions.  However, it disclosed that:

  • in the past the appellant’s son had been put on the child protection register under the category of neglect;
  • the appellant failed to exercise the required degree of care and supervision of her son;
  • the appellant had refused to cooperate with the social services during this period; and
  • her son was removed from the child protection register after he had been convicted of robbery.

Shortly after the ECRC was issued the appellant’s employment was terminated.  The appellant sought judicial review of the Metropolitan Police Service’s decision to disclose the information about her son, alleging that it contravened her right to respect for her private life contrary to art 8 of the European Convention.

Decision

Article 8 of the European Convention recognizes the right to respect for a person’s private and family life, home and correspondence.  

The Court firstly considered whether art 8 was engaged.  Lord Hope, who delivered the leading judgment, held that the decision to disclose information held in central police records fell within the scope of art 8 for the following reasons:

  • Exclusion from employment affected the appellant’s ability to develop relationships with others, her reputation, her ability to earn a living and consequently the enjoyment of her private life.
  • Although information about her son’s conviction was public in nature, the fact that the appellant was his mother was private information as was the information regarding the level of care she provided him and her lack of co-operation with the social services.
  • Although information about criminal convictions is public in nature, the fact that it is stored in central records enables the information to be disclosed well after the incident and ‘as it recedes into the past, it becomes part of the person’s private life which must be respected’ [27].

The Court then considered whether the limitation on the appellant’s rights under art 8(1) could be justified as proportionate under art 8(2).

The Court held that an appropriate balance had to be struck between the need for the protection of children and vulnerable adults from the risk of harm and the appellant’s right to respect for her private life.  Police are obliged to consider, firstly, whether the information is relevant, and secondly, the likely impact on the private life of the applicant.  Decisions to disclose information under s 115 were closely guided by the observations of Lord Woolf MR in R(X) v Chief Constable of the West Midlands Police [2005] 1 WLR 65.  The Court disagreed with the approach in the case finding that balance was ‘titled against the applicant too far’ in that ‘it has encouraged the idea that priority must be given to the social need to protect the vulnerable as against the right to respect for private life of he applicant’ [44].  The Court held that ‘the correct approach as in other cases where competing Convention rights are in issue, is that neither consideration has precedence over the other’ [45].

The Court gave examples of the factors to consider when assessing proportionality:

  • gravity of the material involved;
  • reliability of the information on which it is based;
  • whether the applicant has had a chance to rebut the information;
  • the relevance of the material to the particular job application;
  • the period that has elapsed since the relevant events occurred; and
  • the effect of disclosure on the applicant.

It was considered that in some situations where the disclosure may be irrelevant, unreliable or out of date, then the applicant should be afforded an opportunity to comment.

The Court concluded that the information disclosed about the applicant was no doubt relevant and ‘bore directly on the question whether she was a person who could safely be entrusted with the job of supervising children in a school canteen or in the playground’ [48] and accordingly dismissed the appeal.  Although the appellant was unsuccessful, the principles espoused in this case are significant for future police decisions to disclose information held in public records and the interpretation of art 8 generally.

Relevance to the Victorian Charter

This case has direct relevance for the interpretation of s 13 of the Victorian Charter which mirrors article 8 of the European Convention.  In particular, the Court’s finding that exclusion from employment may affect an individual’s private life and that decisions relating to personal information stored in public records engage the right to privacy may assist arguments regarding the scope of the right to privacy under the Charter.

In Victoria, non-conviction information cannot be disclosed by public authorities.  In April 2007 the Council of Australian Governments ‘agreed in-principle to a framework to improve access to a consistent and expanded range of inter-jurisdictional criminal history information by child related employment screening schemes to improve the safety and protection of children.’  The Crimes Amendment (Working with Children – Criminal History) Bill 2009 proposes to implement COAG’s agreement and is currently before the federal parliament.  The Bill seeks to remove exemptions in the Crimes Act to permit disclosure of pardoned quashed and spent convictions.  Interestingly, Victoria and the ACT (jurisdictions with human rights legislation) did not agree at the COAG meeting to participate in the exchange of information on non-conviction information.

The decision is available at http://www.bailii.org/uk/cases/UKSC/2009/3.html.

Prabha Nandagopal is on secondment to the Centre and Amnesty International from DLA Phillips Fox

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