The Supreme Court’s Decision regarding Criminal Records Disclosure

On 30 January 2019, the Supreme Court handed down judgment in In Re an application by Lorraine Gallagher for Judicial Review (Northern Ireland); R (P, G & W) v Secretary of State for the Home Department; R (P) v Secretary of State for the Home Department [2019] UKSC 3.

The Supreme Court held (Lord Kerr dissenting) that the scheme for the disclosure of criminal records under the 1997 Act was in accordance with the law for the purposes of Article 8 ECHR. It also held that with two exceptions the categories in the scheme were proportionate. The first exception concerned the multiple conviction rule in s113A and s113B of the 1997 Act: as this applied irrespective of the nature of the offences, their similarity, the number of occasions involved, or the intervals of time separating them, it could not be regarded as a necessary or proportionate way of disclosing criminal records indicating a propensity to offend. The second exception concerned warnings and reprimands administered to young offenders: as these had a wholly instructive purpose as an alternative to prosecution designed to avoid any deleterious effect on the young offender’s subsequent life, disclosure to a potential employer would be inconsistent with that purpose. Declarations of incompatibility were upheld in respect of these two exceptions.

Chambers is already seeing cases affected by the judgment: Francesca Whitelaw recently appeared on behalf of the Chief Constable of West Midlands Police in successfully resisting a claim for judicial review by an applicant whose youth convictions fell within both the multiple conviction rule and the serious offences rule, the latter of which rules was not affected by the Supreme Court’s judgment. The Claim was also brought under the GDPR and the Data Protection Act 2018, indicating that this may be a new route by which claimants seek to challenge disclosure of criminal records.