Potential Impact of UK Supreme Court Judgment on Vetting

30-06-2014

Author: Joanelle O’Cleirigh and Roberta Guiry



The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 (“the NVB Act”) was signed into law on 26 December 2012. However, it has not yet been commenced by the requisite ministerial order. On 30 January 2014, it was indicated in the Dáil that elements of the NVB Act relating to the disclosure of convictions were under review in light of the decision of the English Court of Appeal in R (T & Ors) v Chief Constable of Greater Manchester & Ors [2013] EWCA Civ 25. In that case, the Court held that legislation which provides for the blanket disclosure of convictions and cautions, irrespective of their relevance, breaches the right to respect for private life, which is guaranteed by Article 8 of the European Convention on Human Rights (“the Convention“)

The judgment of the Court of Appeal was subsequently appealed to the UK Supreme Court. On 18 June 2014, a five-judge Supreme Court delivered its judgment, upholding the Court of Appeal’s decision. Although the decision of the UK Supreme Court is not binding on the Irish courts, it will be of persuasive precedent in the event that a similar case is brought in Ireland, particularly as it is largely based on case law of the European Court of Human Rights in this area. Any review of the NVB Act should, therefore, take account of the principles set out by the UK Supreme Court in its decision.

UK Supreme Court Decision: Key Takeaways

  • Article 8 of the Convention provides that everyone has the right to respect for his private and family life. This encompasses the right to establish and develop relationships with others, including relationships at work.
  • Information about a person’s convictions which is collected and stored in central records can fall within the scope of “private life”. Although a conviction is a matter of public record, it becomes part of a person’s private life as it recedes into the past, and must be respected. A caution or warning which is administered in private is part of a person’s private life from the outset.
  • Laws which have the effect of jeopardising a person’s ability to pursue their chosen career, or which in practice close off a wide range of potential employments, must be regarded as interfering with a person’s private life.
  • In accordance with Article 8 of the Convention, an interference with a person’s private life is only justified where it is “in accordance with law” and “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
  • Laws which require the blanket or indiscriminate disclosure of all convictions and cautions, irrespective of their relevance, are not “in accordance with the law” as they do not contain adequate safeguards against arbitrary interferences with the right to private life.
  • Such laws also go further than necessary to achieve the legitimate objective of protecting children and other vulnerable groups and do not strike a fair balance between the rights of the persons concerned and the interests of the community as a whole. As such, they are not “necessary in a democratic society”.

Background to Case

The respondent T received two warnings from the police, when he was 11 years old, in connection with the theft of two bicycles. The warnings were disclosed in 2008 when (aged 17) he applied for a job with a football club and again when (aged 19) he enrolled on a sports studies course. Apart from these warnings, T had no other criminal record.

The respondent JB, a 41 year old woman, received a caution from the police in 2001 in respect of the theft of a packet of false fingernails. The caution was disclosed in 2009 when she applied for a criminal record certificate after having completed a training course for employment in the care sector. As a result of the caution, she could not be put forward for employment in the care sector. JB had no other criminal record. Both T and JB issued judicial review proceedings, claiming that the scheme for issuing criminal records certificates was incompatible with Article 8 of the Convention.

UK Vetting Legislation

Under UK vetting legislation, after a certain period of time, criminal convictions and cautions in respect of certain offences are deemed to be “spent”. A person is not obliged to disclose the existence of a spent conviction in response to a question by a prospective employer. At the time when the judicial review proceedings were instituted, this protection did not apply in the context of questions asked to assess suitability for employment with children and vulnerable adults. In such circumstances, an enhanced criminal record certificate could be obtained, providing disclosure of every “relevant matter”, including information on any conviction or caution, whether spent or not. However, following the English Court of Appeal decision in these proceedings, amendments were made to the relevant UK legislation with the result that certain old and minor convictions no longer have to be disclosed. The UK Supreme Court’s decision was, however, based on the legislation as it existed at the time the proceedings were instituted.

UK Supreme Court

On 18 June 2014, the UK Supreme Court upheld the Court of Appeal’s decision to make a declaration of incompatibility in relation to the relevant UK Act on the basis that it was impossible to read and give effect to its provisions in a way which was compatible with T and JB’s rights under Article 8 of the Convention.

The Court held that Article 8 of the Convention was engaged as the cautions and warnings issued to T and JB represented an aspect of their private lives and that the disclosure of the information in the criminal record certificates constituted an interference with their rights. It further found that this interference was neither “in accordance with the law” nor “necessary in a democratic society”.

The majority of the Court found that in order for an interference to be “in accordance with the law,” safeguards must be in place which enable the proportionality of the interference to be adequately examined. Lord Reed, who delivered the judgment of the majority, noted that legislation which requires the blanket or indiscriminate disclosure of personal data which the state has collected and stored does not contain safeguards against arbitrary interferences with Article 8 rights. This is because such legislation does not draw any distinction on the basis of the nature of the offence, the time which has elapsed since the offence took place or the relevance of the data to the employment sought. Further, it does not contain any mechanism for independent review of a decision to disclose the data.

As to whether the interference was necessary in a democratic society, the Court found that the disclosure of the cautions and warnings went further than was necessary to achieve the objective of protecting children and other vulnerable groups and failed to strike a fair balance between the rights of T and JB and the interests of the community.

As regards T, Lord Reed stated that “the disclosure of the warnings for dishonesty which had been given to him when he was a young child bore no rational relationship to the aim of protecting the safety of children with whom, as an adult, he might come into contact.”

As regards JB, the Court commented that the impact that the disclosure had on her private life was disproportionate to the likely benefit in achieving the objective of protecting people receiving care. The Court noted in particular that the offence she had committed was trivial in nature and that it had taken place many years earlier.

Potential Impact in Ireland

It is clear from the decision that a vetting system which provides for blanket disclosure of criminal convictions and cautions, irrespective of their relevance to the employment sought, is likely to fall foul of Article 8 of the Convention. A more calibrated system which identifies the information which should be disclosed in each individual case is to be preferred.

Any review of the disclosure provisions of the NVB Act should have regard to the principles set out by the UK Supreme Court in its decision and to the extensive case law of the European Court of Human Rights in this area. Certain consequential amendments may also be required to the Criminal Justice (Spent Convictions) Bill 2012, which is nearing the final stages of the legislative process.

We will keep you updated on further developments in this important and complex area.

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