(2) Dismissing the appeals of the secretary of state for the home department and the secretary of state for justice against the decision of the Court of Appeal in England and Wales (Sir Brian Leveson, President, Lord Justice Beatson and Lady Justice Thirlwall) ([2018] 1 WLR 3281) in respect of judicial review claims brought by the claimants, P and G, but allowing the appeal in respect of a claim brought by the claimant, W, and dismissing the cross-appeal of P.

The Court of Appeal had upheld decisions in favour of the claimants by the Divisional Court of the Queen’s Bench Division (Lord Justice McCombe and Mrs Justice Carr) ([2016] 1WLR 2009) in P’s case and Mr Justice Blake ([2016] 4 WLR 94) in G’s case; and reversed a decision of Mr Justice Simon ([2015] EWHC 1952 (Admin)) dismissing the claim in W’s case.

Mr Peter Coll, QC, and Mr Aidan Sands (both of the Northern Ireland Bar) for the secretary of state for justice, Northern Ireland; Sir James Eadie, QC, Ms Kate Gallafent, QC, Ms Naina Pateland Mr Christopher Knight for the home and justice secretaries; Mr Martin Wolfe, QC, and Mr Christopher Coyle (both of the Northern Ireland Bar) for Ms Gallagher; Mr Hugh Southey, QC, and Mr Nick Armstrong for P; Mr Tim Owen, QC, and Ms Quincy Whitaker for G; Mr Alex Offer for W. Unlock and Community Law Network Advice intervened by way of written submissions.

Lord Sumption, with whom Lord Carnwath and Lord Hughes agreed, said that the claimants had all been convicted or received cautions or reprimands in respect of comparatively minor offending. The disclosure of their criminal records to potential employers had made it more difficult for them to obtain jobs, or may make it more difficult in future.

In each case the relevant convictions and cautions were “spent” under the legislation designed to enable ex-offenders to put their past behind them. They had to be disclosed only if the claimants applied for employment involving contact with children or vulnerable adults. The claimants challenged the statutory rules under which disclosure of their records was required as being incompatible with their right to respect for private life under article 8 of the European Convention on Human Rights.

The disclosure of criminal convictions, cautions and reprimands was governed by two related statutory schemes. Disclosure by the ex-offender was governed by the Rehabilitation of Offenders Act 1974 in England and Wales and the corresponding provisions of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (SI 1978 No 1908) in Northern Ireland. There was no material difference between those provisions.

Disclosure of criminal records by the Disclosure and Barring Service in England and Wales or AccessNI in Northern Ireland was governed in both jurisdictions by a distinct, but closely related statutory scheme under Part V of the Police Act 1997 (as amended by section 163(2) of the Serious Organised Crime and Police Act 2005 and articles 3 and 4 of the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI 2013 No 1200) and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) Order (Northern Ireland) 2014 (SI 2014 No 100)).

To justify an interference into a person’s right to respect for private life under article 8 of the Convention, the interference had to be in accordance with the law and be a proportionate response to a serious potential problem. To be “in accordance with the law”, the measure had to satisfy the duel test of accessibility and foreseeability.

The existing statutory scheme in place since 2014, in comparison with the scheme in place previously, distinguished, for the purpose of disclosure, between different categories of conviction or caution, depending on the gravity of the offence, the age of the offender at the time and the number of years that had passed since the offence. As such the scheme had the quality of law and was in accordance with the law for the purposes of article 8.

On the question of proportionality, the real objection to the disclosure rules affecting the claimants was not that the statutory scheme operated by categories, but that the categories chosen were said to have been badly designed.

A great deal of thought had gone into the design of the categories of disclosable conviction and in most respects they were acceptable. However, there were two features of the disclosure rules that were disproportionate.

One was the multiple convictions rule, which provided that where a person had more than one conviction of whatever nature, all convictions of whatever nature fell to be disclosed in a criminal record certificate. Its rationale was that a multiplicity of convictions might indicate a criminal propensity. In itself, that was an entirely legitimate objective of a legislative provision of that kind.

The rule as framed was, however, a particularly perverse way of trying to achieve it. It applied irrespective of the nature of the offences, of their similarity, of the number of occasions involved or of the intervals of time separating them. As framed, therefore, the rule was incapable of indicating a propensity. It might coincidentally do so in some cases, but probably would not in a great many more.

It could not be regarded as a necessary or proportionate way of disclosing to potential employers criminal records indicating a propensity to offend.

The other disproportionate feature of the scheme was that it failed to distinguish warnings and reprimands administered to young offenders from other modes of criminal disposal. A reprimand counted as a criminal record, but did not involve the determination of a criminal charge. Its purpose was instructive and reformatory, not punitive, so that its inclusion among the matters to be disclosed was therefore a category error.

Lady Hale, with whom Lord Carnwath agreed, delivered a concurring judgment.

Lord Kerr, dissenting in part, would have dismissed all the appeals and on broader grounds than the majority, in that, in his Lordship’s view, the existing statutory scheme failed to meet a fundamental requirement: that safeguards intrinsic to the scheme allowed for a proper assessment of proportionality.

Solicitors: Solicitor to the Attorney General for Northern Ireland, Belfast; Treasury Solicitor; McElhinney, McDaid & Co, Londonderry; Liberty; Just for Kids Law; Minton Morrill, Leeds.