On appeal from: [2013] EWCA Civ 25

The two respondents appealed against the decision to disclose details of their criminal records in job applications. The respondents had been issued warnings and cautions several years ago, and while one of the respondents had been a child. They had no other entries on their criminal records. The respondents argued that the inclusion of these warnings and cautions on their enhanced criminal record certificates (ECRCs), which prevented them from getting certain employment violated their ECHR, art 8 rights for respect for private life. One respondent also argued the duty to disclose the warnings also violated that right.

ECRCs are issued under the Police Act 1997 when an exempted question is asked by a prospective employer. An exempted question applies in relation to specified professions, including those working with children and vulnerable adults under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.

The Court of Appeal held that the relevant provisions of the 1997 Act, and the 1975 Order were incompatible with art 8 and that the 1975 Order was also ultra vires the 1974 Act. The Secretaries of State appealed to the Supreme Court.

The Supreme Court unanimously dismissed the appeals against the declaration of incompatibility in relation to the 1997 Act and allowed the appeal against the declaration that the 1975 Order was ultra vires. The relevant provisions did violate the respondents’ art 8 rights, seriously affecting their entry into chosen professions. The interferences with the respondents’ art 8 rights were not necessary in a democratic society. However, the amendment of the 1975 Order meant no judicial remedy was necessary in relation to the Order.

For judgment, please download: [2014] UKSC 35
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII