On appeal from: [2016] NICA 42

This appeal considered whether the statutory requirements in respect of an Enhanced Disclosure Certificate and parallel obligation of self-disclosure, such that the existence of more than one conviction will mean that all convictions, no matter their age or subject matter will be disclosable, is a breach of the ECHR, art 8. It also considered whether the retention and disclosure of criminal convictions by virtue of the Police Act 1997 (Criminal Records Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 is a breach of ECHR, art 8 in the same way.

The Supreme Court dismissed the appeals (except in W’s case). The majority of the Court reached the result based on a partial breach of the proportionality test and the whole Court agreed that ECHR, art 8 was engaged.

Lord Sumption gave the main judgment. He considered that the rules governing the disclosure of criminal records under both the 1974 Act and the 1997 Act are highly prescriptive, mandatory and leave no discretion, and therefore that the legality test is satisfied as both schemes are in accordance with the law. However, considering proportionality, Lord Sumption found that, though legislation requiring disclosure by reference to pre-defined categories is justified, the categories in the legislation are disproportionate in two cases: where there are multiple convictions as this fails to indicate propensity as it applies irrespective of nature, similarity, number or time intervals of offences; and where there are warnings and reprimands for younger offenders as these are designed to be instructive and to avoid damaging effects in later life. Therefore he concluded that, in the cases of P and Mrs Gallagher there should be a declaration of incompatibility as the disclosures were based on the multiple convictions rule; there should be a declaration in G’s case as the disclosure pertained to a reprimand against a younger offender; but that the appeal should be allowed in W’s case because it was appropriate to include assault occasioning actual bodily harm within the category of offences requiring disclosure.

Lady Hale gave a concurring judgment in which she agreed with Lord Sumption that, given the need for a practicable and proportionate scheme, bright-line rules are necessary, and that the categories used are proportionate, save as to the two exceptions Lord Sumption identified.

Lord Kerr gave a separate judgment, disagreeing with the majority’s approach to the legality test and its application of the proportionality test. He considered that the legality test goes beyond only satisfying the two requirements of accessibility and foreseeability, contrary to Lord Sumption’s approach. He found that the fundamental requirement is that the operation of the safeguards must permit a proper assessment of the proportionality of the interference with the ECHR, art 8 right. Therefore, Lord Kerr would have found the scheme in England and Wales to fail the legality test since the cases show that there is at least the potential for widespread disproportionate outcomes in disclosure and so it cannot be said that there are safeguards adequately to examine proportionality.

For judgment, please download: [2019] UKSC 3
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To watch the hearing, please visit: Supreme Court Website (19 Jun 2018 morning session) (19 Jun 2018 afternoon session) (20 Jun 2018 morning session) (20 Jun 2018 afternoon session) (21 Jun 2018 morning session)