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Archives for : article 8

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

HR blog: revealing private history – MM and T

Issues about what information the state should retain, and what it should be permitted to reveal, continue to trouble the courts. In each situation there is a difficult balancing act to perform: the right of the individual to a private life, which limits the state’s right to retain information, against the interest of the state in preventing crime and protecting vulnerable individuals from harm, which is a public interest.

This fell to be considered by the European Court in the case of MM[1], a Northern Ireland case. Here the applicant had abducted her baby grandson during a family break-up, but only for a day and only to prevent him being taken abroad. She was not charged with an offence but was given a police caution. Some 12 years later, the caution was disclosed as part of a criminal record check and prevented her from getting a job as a health worker.

The European Court confirmed that both the storing and releasing of information concerning an individual’s private life engage Article 8. Criminal convictions start out as public information but as they become older, they can cease to be of public interest and become part of a person’s private life, because of the state policy of rehabilitation. Here, 12 years later, the caution was within the applicant’s private history. The Court held that the  provisions for storing data did not comply with Article 8 in the absence of clear and detailed statutory rules setting out what information should be collected, how long information should be held, what use it should be put to, and what safeguards applied. In particular, the rules on cautions were not statutory and did not allow for any deletion unless the data was inaccurate; and the law requiring disclosure did not take into account the seriousness of the offence or the time that had passed since it took place. Thus, the retention and disclosure of the information about the caution data could not be regarded as having been in accordance with the law and so was in violation of Article 8.

This was followed in the domestic case of T[2]. Here, the Court of Appeal had to consider the English law which permitted the disclosure of a person having received police cautions. The Court held that the statutory regime which required disclosure of all convictions and cautions relating to all recordable offences was disproportionate to the legitimate aims of the disclosure, which were protecting employers, protecting vulnerable individuals in their care and enabling employers to assess the suitability of a candidate. The blanket disclosure system went beyond what was necessary for these purposes and so was disproportionate. The relevant provision of the Police Act 1997 was therefore made the subject of a declaration of incompatibility and the statutory instrument relied on was quashed.[3]

Parliament has addressed storage of information recently in the Protection of Freedoms Act 2012, which addressed breaches of the Convention in the retention and use of biometric data such as fingerprints and DNA samples. It appears that more attention is needed to ensure that other data held by the police gives proper effect to Article 8.



[1] MM v United Kingdom (2012) (application 24029/07)
[2] R(T) v Chief Constable of Greater Manchester [2013] EWCA Civ 25 [2013] 1 Cr App R 27
[3] Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975

HR blog: Private information vs. a fair trial – Re A

Rights of individuals to control of their own private information is a perennial issue in modern society, where there is ever more data being generated and accumulated. But as well as balancing rights of privacy, perhaps against interests such as freedom of speech or prevention of crime, sometimes the right on the other side of the balance is to ensure a fair trial and to protect others. This draws in Article 8, respect for private life, but also Article 6, right to a fair trial.

This balance had to be struck in the Supreme Court case of Re A.[1] This was a case of proceedings about the contact that a child (C) should have with her parents, especially her father (F). The issue arose because an unrelated third party (X), had made an allegation that she had been sexually abused by F. X did not want to take any further action on the allegation and wished it to be kept confidential. The local authority wanted to refer to the allegation in arguing that F should not have contact with C. F sought disclosure of details of the allegation made by X as he denied it.

The Supreme Court had to address the difficult of issue of balancing these rights: the rights of C and of each of her parents to a fair trial under Article 6; C, her mother and F’s various rights under Article 8 to a family life; but also X’s Article 8 rights to respect for her private life. X also argued that she had rights under Article 3 on the basis that disclosure of the allegations would cause her psychological harm.

The Court considered that the starting point was clear: X’s allegations should be disclosed so that they could be tested in evidence and considered. This would ensure that the child was protected from a risk of harm, if there was such a risk, or allowed contact with her father, if there was no such risk. This was true under the law generally and the same answer applied to the balance to be struck between Convention rights. Disclosure of X’s details would also not amount to inhuman or degrading treatment;  X would have the support and care of her doctors to help with the process; and X would not necessarily have to give evidence in person. The potential risk of harm to the child and the Article 6 and 8 rights of the child and her parents justified interfering with X’s Article 8 rights.



[1] Re A (A Child: Disclosure Of Third Party Information) [2012] UKSC 60, [2012] 3 WLR 1484