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Archives for : September2014

Criminal records and spent convictions: T

One recurring issue is how to balance respect for privacy in information held by the state, and the protection of the public, which manifests itself in the requirements for criminal record checks. What about where a conviction is an old one and it may not be a good indicator that a person is dangerous or a risk?

In the case of T[2], the Supreme Court had to consider the requirement that criminal record certificates should include spent convictions, which is to say convictions that are ignored for most purposes because of the time that has passed since the offence was committed.  In this case, police cautions or warnings were disclosed even though happened some years ago. The Court of Appeal had held that the scheme was unlawful.

The Supreme Court agreed that this case engaged Article 8, that the legislation requiring disclosure of the convictions interfered with Article 8 and held that there was a breach of Article 8 because there was no mechanism for reviewing the decision in an individual case. The disclosure of the spent convictions was not necessary for the protection of children, which was the point of the legislation. Thus, it was incompatible with Article 8. This did mean however that the regulations made under the Act remained in force – they could not be declared unlawful since they were made to give effect to primary legislation and the primary legislation remained in force until amended even though it was incompatible with the Convention.

(In fact, by the time of the Supreme Court appeal, the government had amended the legislation to remove the incompatibility, but the appeal had to be heard on the basis of the law prior to the amendments).

 

[1] R (L) v Metropolitan Police Commissioner [2009] UKSC 3, [2010] 1 AC 410

[2] R (T) v Secretary Of State For The Home Department [2014] UKSC 35, [2014] 3 WLR 96

Balancing Rights – a recent example

An interesting example of the need for the Courts to balance different Convention Rights was the case of TW.[1] Here the Court of Appeal had to consider a case where two rights of a patient came into conflict in the decision of a social worker whether to commit a patient to hospital under the Mental Health Act. The social worker had a duty to consult the patient’s nearest relative, unless it was not reasonably practicable to do so. This therefore ensured that the patient’s interests were considered before she was detained, which is relevant to ensuring there is no arbitrary detention contrary to Article 5. On the other hand, consulting a relative might involve disclosing private information about the patient’s medical history, and this bears on the patient’s rights under Article 8, respect for privacy. The Court considered the issues of reasonableness and proportionality and considered that both Articles were relevant to the proper interpretation of the statutory test of what is ‘reasonably practicable’. Since they had not properly been taken into account, there was an arguable case, so permission to bring a claim for wrongful detention was granted.

[1] TW v Enfield London Borough Council [2014] EWCA Civ 362