People with old and comparatively minor criminal records challenged rules that still required those records to be disclosed for work with children or vulnerable adults. The Supreme Court held that the revised schemes were clear enough to be “in accordance with the law” under article 8, and that disclosure by defined categories, rather than case-by-case review, was legitimate. Two features were nevertheless disproportionate: the rule that a second conviction made every conviction disclosable, and the mandatory disclosure of warnings and reprimands given to young people.
The four cases concerned spent convictions, cautions or reprimands for comparatively minor offending. Under the Rehabilitation of Offenders Act 1974, and the corresponding Northern Ireland legislation, a spent matter need not be disclosed and may lawfully be denied. That protection does not apply where the question is asked to assess suitability for specified work, including work with children or vulnerable adults. Parallel provisions in Part V of the Police Act 1997 require the Disclosure and Barring Service, or Access NI, to disclose the same matters on a criminal record certificate or enhanced certificate.
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P had two minor convictions. Mrs Gallagher had several convictions for seatbelt offences. Both faced disclosure because more than one conviction was recorded. G’s case concerned childhood police reprimands. W had a single conviction as a teenager for assault occasioning actual bodily harm, which remained disclosable as a specified violent offence.
The revised schemes
Amendments in England and Wales in 2013 and Northern Ireland in 2014 introduced filtering. Disclosure still depended on matters such as the offence, the sentence and the time elapsed. A separate rule required disclosure of all convictions if the person had more than one. The cases tested whether these categories struck a fair balance under article 8.
Were the rules “law”?
Article 8 was engaged. An interference must be both “in accordance with the law” and necessary and proportionate for a legitimate aim. Lord Sumption, with whom Lord Carnwath and Lord Hughes agreed, treated those as different tests. Legality is absolute: the measure must be accessible and its effects foreseeable. It fails where a discretion is so broad that its exercise depends on the will of the official rather than on law. A clear duty applying to defined cases raises a different question, of proportionality.
The majority read the earlier Supreme Court decision in R (T), and the Strasbourg decision in MM v United Kingdom, as concerned with the old indiscriminate scheme and with uncertain rules for collecting and retaining data. They did not treat those cases as deciding that precise categories fail to be “law” merely because they are wide or lack individual review. The current rules were highly prescriptive and their impact foreseeable. Lady Hale, with whom Lord Carnwath also agreed, reached the same conclusion: legality protects against arbitrary, unprincipled decisions, and does not require a review mechanism in every case. The revised schemes had been carefully designed and were no longer indiscriminate.
Category-based disclosure
The majority accepted that general rules could protect vulnerable people even if their application sometimes caused hardship. Employers knew the particular job and were responsible for assessing suitability. Applicants needed to know what to disclose before a certificate was obtained. The volume of checks also weighed against requiring an individual assessment of every record.
Two disproportionate rules
The multiple-conviction rule was different. If a person had more than one conviction of any kind, every conviction had to be disclosed, regardless of similarity, seriousness, occasion or the time between them. Its aim of revealing a propensity was legitimate, but the rule could not do that. P’s minor and disparate matters were disclosable because failure to surrender accompanied the second theft. Mrs Gallagher’s 1996 seatbelt matters would have been disclosable simply because four unsecured people produced four convictions. Lord Sumption described a rule with such capricious effects as neither necessary nor proportionate. Lady Hale agreed that, as framed, it was not rationally connected to detecting a propensity.
Warnings and reprimands under the Crime and Disorder Act 1998 were also unlawful as a category. They were preventative and welfare-based, required no consent, and were meant to avoid damaging a young person’s later life. Mandatory disclosure contradicted that purpose. Lord Sumption called their inclusion a category error. The court was not asked to decide whether the same was true of later youth cautions, and left that question open.
W’s conviction fell into a specified category of violent offences. The majority held that assault occasioning actual bodily harm could properly be included, and that omitting a time limit was legitimate: a limit might conceal the worst cases and make the scheme more complex. Hard cases were for employers to judge.
Lord Kerr’s dissent
Lord Kerr would have dismissed the government appeals and affirmed the declarations made below. In his view, a scheme is not “in accordance with the law” unless its safeguards allow proportionality to be examined. Automatic disclosure within broad categories did not do so, and all four cases showed a disproportionate impact. He considered that many employers would treat any record as a bar, and that filtering by relevance to the job, or review of the Northern Ireland kind, was feasible.
Verdict: P and Mrs Gallagher obtained relief against the multiple-conviction rule, and G succeeded over mandatory disclosure of childhood reprimands. W’s challenge to disclosure of his specified violent offence failed. The Court left the position of later youth cautions open.
Source: In re Gallagher and the joined appeals of P, G and W (criminal records disclosure) [2019] UKSC 3
