R (on the application of P) (Appellant) v Secretary of State for the Home Department and others (Respondents)

Hilary Term

[2019] UKSC 3

On appeals from: [2016] NICA 42 and [2017] EWCA Civ 321

In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland) R (on the application of P, G and W) (Respondents) v Secretary of State for the Home Department and another (Appellants) R (on the application of P) (Appellant) v Secretary of State for the Home Department and others (Respondents)

before

Lady Hale, President

JUDGMENT GIVEN ON

30 January 2019

Heard on 19, 20 and 21 June 2018

Justice for NI)	Gallagher)
Peter GJ Coll QC	Martin Wolfe QC
Aidan Sands	Christopher Coyle BL
(Instructed by	(Instructed by
Departmental Solicitors	McElhinney, McDaid &

Office)

Co)

Sir James Eadie QC	Hugh Southey QC
Kate Gallafent QC	Nick Armstrong

Naina Patel

Christopher Knight

(Instructed by The	(Instructed by Liberty)
Government Legal

Department)

Respondent (G)

Tim Owen QC

Quincy Whitaker

(Instructed by Just for

Kids Law)

Respondent (W)

Alex Offer

(Instructed by Minton

Morrill (Leeds))

Intervener (Unlock)

(written submissions only)

Caoilfhionn Gallagher QC

Jesse Nicholls

(Instructed by Bindmans

LLP)

Intervener
(Community Law Advice Network)

(written submissions only)

Morag Ross QC

(Instructed by Clan Childlaw)

LORD SUMPTION: (with whom Lord Carnwath and Lord Hughes agree)

1. The four respondents to these appeals have all been convicted or received cautions or reprimands in respect of comparatively minor offending. The disclosure of their criminal records to potential employers has 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 respondents applied for employment involving contact with children or vulnerable adults. In all four of these appeals, the respondents challenge the statutory rules under which disclosure of their records was required as being incompatible with the European Human Rights Convention.

2. Such cases raise problems of great difficulty and sensitivity. They turn on two competing public interests. One is the rehabilitation of ex-offenders. The other is the protection of the public against people whose past record suggests that there may be unacceptable risks in appointing them to certain sensitive occupations. The importance of both public interests needs no emphasis. The ability of ex-offenders to obtain employment is often an essential condition of their successful reintegration into law-abiding society at what, especially in the case of young offenders, may be a critical period of their lives. On the other hand, in some employment sectors a more cautious approach is indispensable. The Bichard Inquiry (2004) (HC 653) into child protection procedures and vetting practices was a stark reminder of the importance of ensuring that the rehabilitation of offenders does not undermine proper standards of public protection when those with criminal records apply for jobs involving contact with children. The Inquiry had been set up after two young girls had been murdered by a caretaker employed at their school, about whom there had been substantial intelligence in police files, not retained or disclosed to the school, suggesting a pattern of sexual interference with women and young girls.

The essential facts

3. P received a caution on 26 July 1999 for the theft of a sandwich from a shop. Three months later, on 1 November 1999, she was convicted at Oxford Magistrates’

Court of the theft of a book worth 99p and of failing to surrender to the bail granted to her after her arrest for that offence. She received a conditional discharge for both offences. At the time of the offences she was 28 years old, homeless and suffering from undiagnosed schizophrenia which is now under control. She has committed no further offences. P is qualified to work as a teaching assistant but has not been able to find employment. She believes that this is because she has been obliged to disclose her convictions on each job application.

4. W was convicted by Dewsbury Magistrates’ Court on 26 November 1982 of assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861. At the time of the offence he was 16 years old. The assault had occurred in the course of a fight between a number of boys on their way home from school. He received a conditional discharge, and has not offended since. In 2013, when he was 47, he began a course to obtain a certificate in teaching English to adults. His conviction has not been disclosed, but he believes that he would need to disclose it and obtain a criminal record certificate if he were to apply for a job as a teacher, and that this will prejudice his chances of obtaining employment.

5. On 1 August 2006, when he was 13 years old, G was arrested for sexually assaulting two younger boys, contrary to section 13 of the Sexual Offences Act 2003. The offences involved sexual touching and attempted anal intercourse. These were potentially serious offences, but the mitigation was exceptional. The police

record indicates that the sexual activity was consensual and “seems to have been in

the form of ‘dares’ and is believed to have been a case of sexual curiosity and

experimentation of the part of all three boys.” The Crown Prosecution Service

decided that it was not in the public interest to prosecute, but suggested a reprimand under section 65 of the Crime and Disorder Act 1998. On 5 September 2006 G received two police reprimands, one in respect of each of the younger boys. He has not offended since. In 2011, when he was working as a library assistant in a local college, he was required to apply for an enhanced criminal record check because his work involved contact with children. After the application was made, he was told by the police that they proposed to disclose the reprimand, together with an account of the mitigating circumstances. As a result, G withdrew the application and lost his job. He has since felt unable to apply for any job for which a standard or enhanced criminal record check would be required.

6. Lorraine Gallagher was convicted on 24 July 1996 at Londonderry Magistrates’ Court of one count of driving without wearing a seatbelt, for which she

was fined £10, and three counts of carrying a child under 14 years old without a seatbelt, for which she was fined £25 on each count. All four counts related to the same occasion. On 17 June 1998, she was convicted at the same court on two counts of carrying a child under 14 years old in a car without a seatbelt. She was fined £40 on each count. Again, both counts related to the same occasion. She had been carrying two of her children in the back of her car. Their seatbelts had been attached, but not properly because, unbeknown to her (she says), they had placed the shoulder straps under their arms. Ms Gallagher has no other convictions. In 2013, having qualified as a social carer, she was admitted to the Northern Ireland Social Care Council Register of Social Care Workers. In 2014, she applied for a permanent position at a day centre for adults with learning difficulties and received a conditional offer of employment. In response to a request to disclose whether she

had been convicted at any time of a criminal offence she disclosed “Yes” and “carrying child without seatbelt in 1996”, but she did not disclose the conviction in

relation to herself. She did not disclose the 1998 convictions at all. When the enhanced criminal record certificate disclosed all the convictions, the job offer was withdrawn on the ground that her failure to disclose them called her honesty and integrity into question.

The statutory schemes

7. The disclosure of criminal convictions, cautions and reprimands is governed by two related statutory schemes. Disclosure by the ex-offender himself is 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 1978/1908) in Northern Ireland. There is no material difference between the Act and the Northern Ireland Order. I shall therefore refer in this judgment to the provisions of the 1974 Act. Section 1 of that Act provides that, subject to conditions none of which is material, where a person has been convicted of an offence which is not excluded from rehabilitation, that person shall be treated as rehabilitated after the expiry of the rehabilitation period and the conviction shall be treated as spent. Sections 8A and 8AA make corresponding provision for cautions. The rehabilitation period is defined by section 5, and varies according to the sentence of the court and the age of the offender. Section 4 determines the effect of rehabilitation. By section 4(1), the ex-offender is to be treated for all legal purposes as a person who has not committed or been charged or prosecuted or convicted of the offence. For present purposes, the critical provisions of the Act are sections 4(2) and (3). Their effect is that where a question is put to an ex-offender about his previous convictions, offences, conduct or circumstances (other than in judicial proceedings), the question shall not be treated as relating to spent convictions and may be answered accordingly. In other words, the ex-offender is under no obligation to disclose it, and indeed may lawfully deny it. He is not to be subjected to any liability or prejudice in consequence. Section 4(4) provides that the Secretary of State may by order provide for exceptions to sections 4(2) and (3). The Secretary of State exercised this power for England and Wales by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) (as amended); and for Northern Ireland by the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 (SR(NI) 1979/195). The effect of the Orders is that an ex-

offender’s right not to disclose a conviction or caution does not apply if the question

is asked in order to assess his or her suitability for any of 13 specified purposes. These include his or her suitability for admission to certain professions or certain kinds of employment; or for his or her assignment to work with children or vulnerable adults in specified circumstances; or for the provision of day care; or for the adoption of a child.

8. Disclosure of criminal records by the Disclosure and Barring Service in England and Wales or AccessNI in Northern Ireland is governed in both jurisdictions by a distinct but closely related statutory scheme under Part V of the Police Act 1997 (as amended). Sections 113A and 113B of the 1997 Act (as inserted)

deal, respectively, with criminal record certificates (“CRCs”) and enhanced criminal record certificates (“ECRCs”) recording a person’s convictions and cautions,

including spent convictions and cautions. Applications for a certificate are made by

the ex-offender himself and countersigned by a “registered person”, namely a person

registered as having a proper interest in the information. In R (T) v Chief Constable of Greater Manchester Police (Liberty intervening) [2015] AC 49, paras 10-12, Lord Wilson concisely summarised the scheme of disclosure under the Police Act 1997, as it stood before the scheme was amended in March 2014:

“10. Sections 113A and 113B of the 1997 Act identify the circumstances in which the DBS must issue a CRC … and an

ECRC respectively. The only substantive difference between the two certificates is that an ECRC must include not only, as must a CRC, relevant matters recorded on the Police National Computer but also, by way of enhancement, information about the person on local police records which they reasonably believe to be relevant and ought to be included (conveniently

described as ‘soft intelligence’): contrast section 113A(3)(a)

with section 113B(3)(a)(4). It is only where the certificate is

required ‘for the purposes of an exempted question asked for a

prescribed purpose’ that an ECRC, rather than a CRC, is

available …

11. In summary, section 113B provides that an ECRC must be issued in the following circumstances: (a) The application for it is made by the person who is to be the subject of it: subsection (1)(a). (b) The application is countersigned by a person listed in a register, maintained by the DBS, of persons

likely to ask ‘exempted questions’: subsection (2)(a), read with

section 120. (c) The application is accompanied by a statement by the registered person that the certificate is required for the

purposes of an ‘exempted question’ asked for a ‘prescribed

purpose’: subsection (2)(b). (d) An ‘exempted question’ is a

question to which exemption from protection arises under the 1975 Order: subsection (9) and section 113A(6). (e) A

‘prescribed purpose’ is a purpose prescribed in regulation 5A

of the Police Act 1997 (Criminal Records) Regulations 2002 (SI 2002/233) (as inserted by paragraph 1 of Schedule 1 to the Police Act 1997 (Criminal Records) (Amendment) Regulations 2006 (SI 2006/748)) which sets out a list overlapping with, but not co-extensive with, the list in article 3 of the 1975 Order, of situations in which the registered person proposes to consider

the applicant’s suitability for a specified position of trust or

sensitivity.

12. … [It is] convenient to regard both the exceptional obligation of a person to disclose a spent conviction or a caution under the 1975 Order and the obligation of the DBS to make disclosure of it by an ECRC under the 1997 Act as running in parallel. But the parallel is not exact. For the obligation of the DBS to make disclosure under an ECRC is, at the same time, both wider than the obligation of the person in terms of its inclusion of soft intelligence and yet narrower in that it arises only in circumstances in which the application is countersigned by a registered person who states that the certificate is required for a prescribed purpose. There will therefore be cases in which, although the questioned person is not exempt from a duty of disclosure, the questioner is not entitled to call for an ECRC. Nevertheless, the shape of the 1975 Order is certainly reflected in the 1997 Act: for, if the prescribed circumstances surrounding the application for the ECRC are present, the duty of the DBS is to disclose even spent convictions and cautions irrespective of the circumstances in

which they arose.”

In summary, the 1997 Act provided for the mandatory disclosure of all convictions

and cautions on a person’s record if the conditions for the issue of a certificate were

satisfied.

9.         Section 113A(7) empowered the Secretary of State to amend by Order the

definition of “relevant matters” falling to be disclosed. With effect from March

2014, this power was exercised so as to introduce a more selective system for disclosure by the Disclosure and Barring Service: Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 (SI 2013/1200). Similar changes were made in Northern Ireland with effect from April 2014 by the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) Order (Northern Ireland) 2014 (SI 2014/100). The effect of the amendments was to limit the disclosure of convictions and cautions under sections 113A and 113B of the Police Act to (i) convictions and cautions for any of a list of more serious offences, generally violent or sexual, contained in section 113A(6D); (ii) convictions which resulted in a custodial sentence; (iii) other convictions or

cautions if they were still “current”, ie had occurred within a specified period before

the issue of the certificate, viz 11 years in the case of an adult and five and a half years in the case of a minor; and (iv) all convictions and cautions where the person has more than one conviction. Broadly corresponding limitations were imposed on the convictions and cautions which had to be disclosed under the Rehabilitation of Offenders Act 1974: see Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (SI 2013/1198), and Rehabilitation of Offenders (Exceptions) (Amendment) Order (Northern Ireland) 2014 (SI 2014/27).

10. Section 4(2) and (3) of the Rehabilitation of Offenders Act 1974 are not in terms confined to disclosures in the course of job applications. These are, however, much the most significant occasions on which the disclosure of a criminal record is likely to be required, and it is clear that it was primarily with that context in mind that Parliament enacted section 4. It follows that in conferring power on the Secretary of State, by section 4(4), to exclude the operation of sections 4(2) and 4(3) in specified circumstances, Parliament envisaged that there would be occupations in respect of which convictions should be disclosed to a potential employer, professional body or appointing authority notwithstanding that they were spent and notwithstanding that the convicted person might be prejudiced by their disclosure. The scheme for the disclosure of criminal records by the Disclosure and Barring Service (or AccessNI in Northern Ireland) under the Police Act 1997 is carefully tailored to match the disclosure obligations of the person whose record is in question. Under sections 113A(6) and 113B(9) of the Police Act 1997, where the question is asked in circumstances excluded from the operation of the Rehabilitation of Offenders Act 1974 under section 4(4) of the latter Act, it will fall to be disclosed by the Disclosure and Barring Service (or AccessNI in Northern Ireland) notwithstanding that it is spent. This is a coherent scheme of legislation which acknowledges both of the competing public interests to which I have referred, and seeks to achieve a balance between them. Those interests are not only competing but incommensurate. In the nature of things, wherever the line is drawn, it will not be satisfactory from every point of view. The whole issue raises classic policy dilemmas. The underlying policy is precautionary, in line with strong public expectations. The question is whether in adopting that approach the appellants contravened the European Convention on Human Rights.

Article 8 of the Human Rights Convention

11.       Article 8 provides:

“Right to respect for private and family life

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is 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.”

12.       It is not disputed that article 8 is engaged. It confers a qualified right of

privacy, subject to important exceptions for measures which are (i) “in accordance

with the law”, and (ii) “necessary in a democratic society in the interests of … public

safety … for the prevention of disorder or crime, for the protection of health or

morals, or for the protection of the rights … of others.” Conditions (i) and (ii) impose

tests of a very different character, with very different consequences. Condition (i) is concerned with the legal basis for any measure which interferes with the right of privacy. Any such measure must not only have some legal basis in domestic law, but must be authorised by something which can properly be characterised as law. This is an absolute requirement. In meeting it, Convention states have no margin of appreciation under the Convention, and the executive and the legislature have no margin of discretion or judgment under domestic public law. Only if the test of legality is satisfied does the question arise whether the measures in question are necessary for some legitimate purpose and represent a proportionate means of achieving that purpose.

13. The Court of Appeal in England in R (P) v Secretary of State for Justice, R (G) v Chief Constable of Surrey Police and R (W) v Comr of Police of the Metropolis

[2018] 1 WLR 3281, and the Court of Appeal in Northern Ireland in In re

Gallagher’s Application [2016] NICA 42, upheld the respondents’ cases. Although

the reasons of both courts were substantially the same, the fullest analysis of the law is to be found in the judgment of Sir Brian Leveson P in the English cases. He rejected the submission that the Convention required a system of review that would enable each case to be assessed on its own facts. But he held, first, that the legislation

was not “in accordance with the law” because, although it discriminated between

different categories of offence and convictions, the categories were still too broad. They embraced offences of widely differing relevance, and were therefore liable to operate arbitrarily in a significant number of cases. In particular, he regarded as inconsistent with the legality test: (i) the rule which made all convictions disclosable if there was more than one, because it failed to distinguish between cases which disclosed a relevant pattern of offending and those which did not; and (ii) the rule that required the disclosure of specified serious offences, because it was

“insufficiently calibrated so as to ensure that the proportionality of the interference

is adequately examined”: [2018] 1 WLR 3281, para 45. Even if the legislation had

passed the legality test, the scheme would have been disproportionate to its objective

because it was insufficiently “granular” in distinguishing between convictions and

cautions of varying degrees of relevance. It will be seen that the reasons why, in his view, the legislation failed the legality and proportionality tests were substantially the same. The scheme was more discriminating than its predecessor, but not discriminating enough.

“In accordance with the law”

14. The respondents submit that because the categories of disclosable conviction or caution are (they say) too wide, and not subject to individual review, the legislation does not have the quality of law. Before I examine this submission in the light of the authorities, it is right to draw attention to some of its more far reaching consequences if it is correct. In the first place, it means that the legislation is incompatible with article 8, however legitimate its purpose, and however necessary or proportionate it may be to deal with the problem in this particular way. That conclusion would plainly have significant implications for the protective functions of the state, especially in relation to children and vulnerable adults. Secondly, it must be remembered that the condition of legality is not a question of degree. The measure either has the quality of law or it does not. It is a binary test. This is because it relates to the characteristics of the legislation itself, and not just to its application in any particular case: see Kruslin v France (1990) 12 EHRR 547, paras 31-32. It follows that if the legislation fails the test of legality, it is incompatible with the Convention not just as applied to those convicted of minor offences like these respondents, but to the entire range of ex-offenders including, for example, convicted child molesters, rapists and murderers. Thirdly, this consequence cannot be confined to the right of privacy. Most Convention rights are qualified by reference to various countervailing public interests. These qualifications are fundamental to the scheme of the Convention. They are what makes it possible to combine a high level of protection of human rights with legitimate measures for the protection of the public against real threats to their welfare and security. For that reason, exceptions corresponding to those in article 8 attach to a number of other Convention rights. They too must also have a proper basis in law. It is fair to say that the jurisprudence of the Strasbourg court has been especially sensitive to the keeping of files on individuals by the state, a practice which was gravely abused by the authoritarian regimes of the 20th century in most of continental Europe. This sensitivity explains why the right of privacy has been extended from covert and intrusive surveillance to the recording of things

which would not be regarded as “private” in any other context, for example

participation in demonstrations in public places (Segerstedt-Wiberg v Sweden (2007) 44 EHRR 2, para 72) and even public acts of the state itself, such as criminal convictions in an open court of law (MM v United Kingdom (Application 24029/07), 29 April 2013, at para 188). But the question what constitutes law is the same whatever the subject matter. Neither the Strasbourg court nor the courts of the United Kingdom have ever suggested that the condition of legality applies in any different way in article 8 as compared with other articles. In principle, therefore, whatever conclusion we reach in this case about the scope of the condition of legality must apply equally to the exceptions to article 5 (right to liberty and security), article 9 (freedom of thought, conscience and religion), article 10 (freedom of expression), and article 11 (freedom of assembly and association). In none of these articles would there be any scope for distinctions based on judgment or discretion or weighing of broader public interests, even on the most compelling grounds, once the relevant

measure failed the respondents’ exacting test of legality.

15. Nonetheless, the respondents submit that the issue was resolved in their favour by the decision of this court in R (T) v Chief Constable of Greater Manchester Police [2015] AC 49, and that submission was accepted by the courts below. The argument is that, as applied to legislation which applies indiscriminately to a wide range of potentially very different circumstances, T is authority for the proposition that the test of legality requires that the legislation should include safeguards against its arbitrary application, by which is meant the disclosure of matters manifestly

irrelevant to an ex-offender’s suitability for employment. T is a recent and

considered decision of this court about an earlier version of the statutory scheme before us now. If it means what the respondents submit that it means, it is our duty to follow it unless (which is not suggested) Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 applies. The decision, however, needs to be properly understood in the light of the substantial body of Strasbourg case law on which it was expressly based and the particular domestic legislation with which it was concerned.

16.       It is well established that “law” in the Human Rights Convention has an

extended meaning. In two judgments delivered on the same day, Huvig v France (1990) 12 EHRR 528, at para 26, and Kruslin v France (1990) 12 EHRR 547, para 27, the European Court of Human Rights set out what has become the classic definition of law in this context:

“The expression ‘in accordance with the law’, within the

meaning of article 8.2, requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the

rule of law.”

Huvig and Kruslin established a dual test of accessibility and foreseeability for any measure which is required to have the quality of law. That test has continued to be

cited by the Strasbourg court as the authoritative statement of the meaning of “law”

in very many subsequent cases: see, for example, most recently, Catt v United
Kingdom (Application No 43514/15, 24 January 2019).

17. The accessibility test speaks for itself. For a measure to have the quality of law, it must be possible to discover, if necessary with the aid of professional advice, what its provisions are. In other words, it must be published and comprehensible. The requirement of foreseeability, so far as it adds to the requirement of accessibility, is essentially concerned with the principle summed up in the adage of

the American founding father John Adams, “a government of laws and not of men”.

A measure is not “in accordance with the law” if it purports to authorise an exercise

of power unconstrained by law. The measure must not therefore confer a discretion so broad that its scope is in practice dependent on the will of those who apply it, rather than on the law itself. Nor should it be couched in terms so vague or so general as to produce substantially the same effect in practice. The breadth of a measure and the absence of safeguards for the rights of individuals are relevant to its quality as law where the measure confers discretions, in terms or in practice, which make its effects insufficiently foreseeable. Thus a power whose exercise is dependent on the judgment of an official as to when, in what circumstances or against whom to apply it, must be sufficiently constrained by some legal rule governing the principles on which that decision is to be made. But a legal rule imposing a duty to take some action in every case to which the rule applies does not necessarily give rise to the same problem. It may give rise to a different problem when it comes to necessity and proportionality, but that is another issue. If the question is how much discretion is too much, the only legal tool available for resolving it is a proportionality test which, unlike the test of legality, is a question of degree.

18. This much is clear not only from the Huvig and Kruslin judgments themselves, but from the three leading decisions on the principle of legality on which

the Strasbourg court’s statement of principle in those cases was founded, namely

Sunday Times v United Kingdom (1979-80) 2 EHRR 245, Silver v United Kingdom
(1983) 5 EHRR 347 and Malone v United Kingdom (1985) 7 EHRR 14.

19. Sunday Times v United Kingdom (1979-80) 2 EHRR 245 was the first occasion on which the Strasbourg court addressed the test of legality. It was not a privacy case, but a case about freedom of expression in the context of the English law of contempt of court. The requirement of foreseeability was summarised by the court as follows at para 49:

“A norm cannot be regarded as a ‘law’ unless it is formulated

with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances,

the consequences which a given action may entail.”

20. In Silver v United Kingdom (1983) 5 EHRR 347, para 85, the Strasbourg court adopted this definition and applied it to a complaint of interference with

prisoners’ correspondence, contrary to article 8. The court observed at para 88 that

the need for precision in the Sunday Times case meant that “a law which confers a discretion must indicate the scope of that discretion.” It was in that context that the

court addressed the question of safeguards, at para 90:

“The applicants further contended that the law itself must

provide safeguards against abuse. The Government recognised that the correspondence control system must itself be subject to control and the court finds it evident that some form of safeguards must exist. One of the principles underlying the Convention is the rule of law, which implies that an

interference by the authorities with an individual’s rights

should be subject to effective control. This is especially so where, as in the present case, the law bestows on the executive wide discretionary powers, the application whereof is a matter of practice which is susceptible to modification but not to any

Parliamentary scrutiny.”

In Silver, interference with prisoners’ correspondence was authorised as a matter of

domestic law by the Prison Rules, a statutory instrument which conferred an

unlimited discretion on the Secretary of State to impose restrictions on prisoners’

correspondence for certain broadly stated purposes. It also required the Secretary of

State’s consent to correspondence with anyone other than a close relative and empowered the prison governor to “at his discretion, stop any letter or

communication on the ground that its contents are objectionable or that it is of

inordinate length.” These discretions were regulated by internal administrative

instructions which, however, were neither published nor available to prisoners. The relevant restrictions were held not to be in accordance with the law because in some

cases “the actual measure of interference complained of was not foreseeable” and in

others “the rule under which the stopping was effected could not itself be foreseen”.

21. A fuller statement of the same principle appeared in the important judgment in Malone v United Kingdom (1985) 7 EHRR 14. The context was telephone tapping, which under the system then in operation in the United Kingdom was authorised by warrants of the Home Secretary under purely administrative powers with no statutory basis. The power exercisable by the Home Secretary was agreed to be lawful as a matter of domestic law, but no law constrained or limited his discretion. After reciting the Sunday Times test, the court continued at para 67:

“The court would reiterate its opinion that the phrase ‘in

accordance with the law’ does not merely refer back to

domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention. The phrase thus implies - and this follows from the object and purpose of article 8 - that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph (1). Especially where a power of the executive is exercised in secret, the risks of

arbitrariness are evident. … the law must be sufficiently clear

in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for

private life and correspondence.”

The court then referred to its earlier observations in Silver about unconstrained discretion. At para 68, it observed:

“The degree of precision required of the ‘law’ in this

connection will depend upon the particular subject matter. Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the

individual adequate protection against arbitrary interference.”

Accordingly, at para 70, the court identified the issue before them as being

“whether, under domestic law, the essential elements of the

power to intercept communications were laid down with reasonable precision in accessible legal rules that sufficiently indicated the scope and manner of exercise of the discretion conferred on the relevant authorities.

This issue was considered under two heads in the pleadings: firstly whether the law was such that a communication passing through the services of the Post Office might be intercepted, for police purposes, only pursuant to a valid warrant issued by the Secretary of State and, secondly, to what extent the circumstances in which a warrant might be issued and

implemented were themselves circumscribed by law.”

The system was held not to be in accordance with the law because it failed the second of these tests. The circumstances in which the Home Secretary might issue a warrant were not sufficiently defined. The court summarised the reasons at para 79:

“in its present state the law in England and Wales governing

interception of communications for police purposes is

somewhat obscure and open to differing interpretations. … it

cannot be said with any reasonable certainty what elements of the powers to intercept are incorporated in legal rules and what

elements remain within the discretion of the executive. … In

the opinion of the court, the law of England and Wales does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. To that extent, the minimum degree of legal protection to which citizens are entitled under the rule of law

in a democratic society is lacking.”

Later, at para 87, the court made a similar criticism of the practice of “metering”, ie

the recording of numbers dialled and the duration of calls, but not their content:

“there would appear to be no legal rules concerning the scope

and manner of exercise of the discretion enjoyed by the public authorities. Consequently, although lawful in terms of domestic law, the interference resulting from the existence of

the practice in question was not ‘in accordance with the law’,

within the meaning of article 8(2).”

22. The French system for tapping telephones was criticised on broadly similar grounds in Huvig and Kruslin. In the latter case, at paras 35-36, the court observed:

“35. Above all, the system does not for the time being afford adequate safeguards against various possible abuses. For example, the categories of people liable to have their telephones tapped by judicial order and the nature of the offences which may give rise to such an order are nowhere defined. Nothing obliges a judge to set a limit on the duration of telephone tapping. Similarly unspecified are the procedure for drawing up the summary reports containing intercepted conversations; the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge (who can hardly verify the number and length of the original tapes on the spot) and by the defence; and the circumstances in which recordings may or must be erased or the tapes be destroyed, in particular where an accused has been discharged by an investigating judge or acquitted by a court. The information provided by the Government on these various points shows at best the existence of a practice, but a practice lacking the necessary regulatory control in the absence of legislation or case law.

36. In short, French law, written and unwritten, does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. This was truer still at the material time, so that Mr Kruslin did not enjoy the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (see the Malone judgment previously cited, Series A no 82, p 36, para 79). There has therefore been a breach of article

8 of the Convention.”

23.       In three notable later cases, Amann v Switzerland (2000) 30 EHRR 843,

Rotaru v Romania (2000) 8 BHRC 449 and S v United Kingdom (2009) 48 EHRR 50, the same principles were applied to the retention in police records of personal information. Amann was another case about phone tapping. The court held that the retention of the fruits of a tap in police files did not satisfy the legality test even on the footing that the tap itself was in accordance with law. The decision was expressed to be based on the statement of principle in Malone (para 56), and on a

finding (para 62) that “Swiss law does not indicate with sufficient clarity the scope and conditions of exercise of the authorities’ discretionary power in the area under

consideration.” In Rotaru, the applicant objected to the retention on the files of the

Romanian state security service of information, some of it false, about his dissident activities in the early years of the post-war communist regime nearly half a century before. His case (see para 50), which was upheld by the Grand Chamber, was that this was

“not in accordance with the law, since domestic law was not

sufficiently precise to indicate to citizens in what circumstances and on what terms the public authorities were empowered to file information on their private life and make use of it. Furthermore, domestic law did not define with sufficient precision the manner of exercise of those powers and

did not contain any safeguards against abuses.”

The judgment is of particular interest because it addresses the requirement that there

should be “safeguards established by law which apply to the supervision of the relevant services’ activities” (para 59). After examining the relevant domestic law,

which conferred broad discretionary powers on the security service, and concluding
that there were no safeguards, the court stated its conclusion as follows at para 61:

“That being so, the court considers that domestic law does not

indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public

authorities.”

Finally, in S, the complaint was about the retention of DNA samples taken from suspects who had subsequently been acquitted. At para 95, the court observed:

“The court recalls its well established case law that the wording

‘in accordance with the law’ requires the impugned measure

both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v United Kingdom (1985) 7 EHRR 14, paras 66-68; Rotaru v Romania (2000) 8 BHRR 449, para 55; and Amann v Switzerland (2000) 30

EHRR 843, para 56).”

(See also Kvasnica v Slovakia (Application No 72094/01), 9 June 2009, para 79 and

Dragojević v Croatia (Application No 68955/11), 15 Jan 2015, at paras 80-83.)

24. As can be seen from these citations, from the outset the Strasbourg court has treated the need for safeguards as part of the requirement of foreseeability. It has applied it as part of the principle of legality in cases where a discretionary power would otherwise be unconstrained and lack certainty of application. This may be illustrated by reference to the subsequent decisions in Liberty v United Kingdom (2009) 48 EHRR 1 and Gillan v United Kingdom (2010) 50 EHRR 45. Liberty concerned the bulk interception of telephone communications passing through submarine cables terminating in the United Kingdom. There was statutory authority for the interception, but as the court pointed out at para 69, the legal framework did not have the quality of law. This was because

“the court does not consider that the domestic law at the

relevant time indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the state to intercept and examine external communications. In

particular, it did not, as required by the court’s case law, set out

in a form accessible to the public any indication of the procedure to be followed for selecting for examination,

sharing, storing and destroying intercepted material.”

Similarly, in Gillan, at para 77, the connection between the principle of legality and the existence of unconstrained discretion was reasserted in the context of stop and search powers. The court observed of the dual test of accessibility and foreseeability at para 77:

“For domestic law to meet these requirements it must afford a

measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of domestic legislation - which cannot in any case provide for every eventuality - depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and

status of those to whom it is addressed.”

MM v United Kingdom

25. It is against that background that one must approach the decision in MM v United Kingdom (Application No 24029/07), 29 April 2013. The case concerned the retention and disclosure by the police of records of cautions in Northern Ireland. The applicant had received a caution for child abduction in 2000 in unusual circumstances which provided very strong mitigation. Its disclosure had nevertheless resulted in the failure of two applications for jobs involving care work. She had accepted the caution on an assurance that it would be deleted from police records after five years, which was the practice at the time. But the practice subsequently changed, and her attempts in 2006 and 2007 to have the caution deleted were unsuccessful. The gravamen of her complaint was not about the past disclosures, but about the retention of the caution on police files, which exposed her to the risk of disclosure in future whenever she applied for a job requiring a criminal record certificate. Much of the analysis of the Strasbourg court needs to be understood in that light.

26. The Strasbourg court examined in detail the complex and changing legal basis on which criminal records were handled in Northern Ireland. There were three stages of the process to be considered, namely (i) collection of data, (ii) its retention in the records of the authorities, and (iii) its disclosure to third parties. At the time when the caution was given, convictions in Northern Ireland were recorded under statutory regulations but the record was retained and disclosed under common law powers. The regime governing cautions was different. They were recorded as well as retained and disclosed under common law powers. The only legal limitation on the exercise of these powers was the Data Protection Act 1998. On 1 April 2008, the system was changed when Part V of the Police Act 1997 was brought into force in Northern Ireland by the Police Act 1997 (Commencement No 11) Order (SI 2008/692). This introduced to Northern Ireland the system (already in force in England and Wales) under which the disclosure of all recorded and retained convictions and cautions, including warnings and reprimands, was mandatory. It did not affect the recording or retention of cautions, which continued to be governed by

common law powers. The new regime in Northern Ireland was relevant to MM’s

case because the Police Act would thereafter have applied to the disclosure of her
caution in connection with any fresh job application after April 2008.

27. The Strasbourg court was invited by the United Kingdom government to treat as part of the legal framework governing collection and retention of data the statutory Code of Practice for the Management of Police Information, issued by the Secretary of State in 2005 under section 39A of the Police Act 1996. This established general standards for the management of police information, and provided for the

issue of Guidance by the Association of Chief Police Officers (“ACPO”) in 2006

and 2010 which police forces were required to comply with. These documents, however, applied directly only in England and Wales. As the court noted at para 33, although the statutory Code of Practice was available for adoption by police forces elsewhere, it was not clear that it had been adopted in Northern Ireland. (In any event, since section 39A of the Police Act 1996 did not extend to Northern Ireland, it could have had only administrative and not statutory force there.)

28. The court held that the scheme did not have the quality of law, either before or after April 2008. The principle on which it proceeded was stated at the outset of its analysis, at para 193, by reference to the dual requirements of accessibility and foreseeability derived from its earlier case law, including Malone and Liberty:

“The law must thus be adequately accessible and foreseeable,

that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the

manner of its exercise.”

29. The pre-2008 position in Northern Ireland as regards cautions was an obvious example of unconstrained discretionary power. For present purposes, however, the judgment is mainly of interest for its treatment of the position in Northern Ireland after April 2008 under the Police Act 1997. MM contended that the caution should have been deleted so as not to be available for disclosure under the new regime. The court recorded (para 195) its view that article 8 was engaged by the whole process of collection, retention, use and disclosure of data on police files. It recognised (para 199) that

“there may be a need for a comprehensive record of all

cautions, conviction, warnings, reprimands, acquittals and even other information of the nature currently disclosed pursuant to

section 113B(4) of the 1997 Act.”

However, as the court went on to observe at para 200:

“the greater the scope of the recording system, and thus the

greater the amount and sensitivity of data held and available for disclosure, the more important the content of the safeguards to be applied at the various crucial stages in the subsequent

processing of the data.”

In other words, the considerations that were relevant to each of the three stages were interrelated, because the greater the volume or significance of the data retained, the more important it was to restrict its disclosure. It followed that for the statutory scheme to have the quality of law, it was not enough that the circumstances in which disclosure was authorised were sufficiently defined by law. This merely pushed the issue back to the earlier stages of collection and storage of data. In R (Catt) v

Association of Chief Police Officers of England and Wales and Northern Ireland

[2015] AC 1065, para 15, I suggested that the Strasbourg court in MM had found disclosure of convictions under sections 113A and 113B not to be in accordance with law because it was mandatory. It would have been more accurate to say that it was because its mandatory disclosure meant that the scheme as a whole was not in accordance with law, which is the third point made at para 16. If collection and retention continued to be subject to an unconstrained discretion, the result was that the bank of data available for mandatory disclosure was variable according to the judgment of the police and did not have the necessary quality of foreseeability.

30.       In MM, the court regarded the system of recording and retention of criminal

convictions in Northern Ireland as “indiscriminate and open-ended”: see para 199.

It went on to say that such a system

“is unlikely to comply with the requirements of article 8 in the

absence of clear and detailed statutory regulations clarifying the safeguards applicable and setting out the rules governing, inter alia, the circumstances in which data can be collected, the duration of their storage, the use to which they can be put and

the circumstances in which they may be destroyed.”

The problem, as the court pointed out at para 202, was that both before and after April 2008, there was no legislation, primary or secondary, governing the collection and retention of cautions, apart from the Data Protection Act. In the view of the court, the guidance of the ACPO, which had no statutory basis in Northern Ireland,

did not sufficiently fill the gap. The court’s conclusion was stated at paras 206-207:

“206. In the present case, the court highlights the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. It further refers to the absence of any mechanism for independent review of a decision to retain or disclose data, either under common law police powers or pursuant to Part V of the 1997 Act. Finally, the court notes the limited filtering arrangements in respect of disclosures made under the provisions of the 1997 Act: as regards mandatory disclosure under section 113A, no distinction is made on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought.

207. The cumulative effect of these shortcomings is that the court is not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the

applicant’s private life have not been, and will not be, disclosed

in violation of her right to respect for her private life. The

retention and disclosure of the applicant’s caution data

accordingly cannot be regarded as being in accordance with the

law.”

31. In the most recent decision of the Strasbourg court, Catt v United Kingdom

(Application No 43514/15), MM was treated at para 94 as authority for the following
proposition:

“94.	As the court has recalled the expression ‘in accordance

with the law’ not only requires the impugned measure to have

some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope and discretion conferred on the competent authorities and the manner of its exercise (see, among other authorities, MM v United Kingdom, no 24029/07,

para 193, 13 November 2012 with further references).”

In other words, an excessively broad discretion in the application of a measure infringing the right of privacy is likely to amount to an exercise of power unconstrained by law. It cannot therefore be in accordance with law unless there are sufficient safeguards, exercised on known legal principles, against the arbitrary exercise of that discretion, so as to make its application reasonably foreseeable.

Domestic case law

32.       This is, moreover, the analysis which the English courts have given the

Strasbourg case law.

33. In R (Gillan) v Comr of Police for the Metropolis [2006] 2 AC 307, para 34, Lord Bingham put the matter in this way:

“The lawfulness requirement in the Convention addresses

supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by

arbitrariness, which is the antithesis of legality.”

34.       In R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345, at para 41,

Lord Hope observed that the Convention’s concept of law

“implies qualitative requirements, including those of

accessibility and foreseeability. Accessibility means that an individual must know from the wording of the relevant

provision and, if need be, with the assistance of the court’s

interpretation of it what acts and omissions will make him criminally liable: see also Gülmez v Turkey (Application No 16330/02) (unreported) given 20 May 2008, para 49. The requirement of foreseeability will be satisfied where the person concerned is able to foresee, if need be with appropriate legal advice, the consequences which a given action may entail. A law which confers a discretion is not in itself inconsistent with this requirement, provided the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against interference which is arbitrary: Goodwin v United Kingdom (1996) 22 EHRR 123,

para 31; Sorvisto v Finland, para 112.”

He went on to point out that by this test the Suicide Act 1961, which indiscriminately criminalised aiding and abetting, counselling or procuring the suicide of another in all circumstances without exception was in accordance with law because the statute sufficiently disclosed what a person had to do to comply with it.

R (T) v Chief Constable of Greater Manchester Police

35. R (T) v Chief Constable of Greater Manchester Police [2015] AC 49 concerned the regime governing disclosure of criminal records in England as it stood before the changes introduced with effect from March 2014. This court held that that regime lacked the quality of law. The leading judgment on this point was delivered by Lord Reed, with whom Lord Neuberger, Baroness Hale and Lord Clarke agreed. There was very little discussion of the Northern Ireland system for managing criminal records considered in MM, because Lord Reed proceeded on the basis that the English legislation under consideration was indistinguishable from it: see paras 100, 119. This was not entirely correct. As I have explained, the Code of Practice and associated ACPO Guidance governing the management of police information in England had statutory force in England but not in Northern Ireland. But for reasons which will appear, I do not think that that difference was critical to the outcome, either in MM or in T.

36.       The essence of Lord Reed’s reasoning appears at paras 113, 114 and 119 of

the judgment:

“113. As long ago as 1984, the court said in Malone v United

Kingdom 7 EHRR 14, in the context of surveillance measures,

that the phrase ‘in accordance with the law’ implies that ‘the

law must … give the individual adequate protection against

arbitrary interference’: para 68. In Kopp v Switzerland (1998)

27 EHRR 91, para 72, it stated that since the surveillance constituted a serious interference with private life and

correspondence, it must be based on a ‘law’ that was

particularly precise: ‘It is essential to have clear, detailed rules

on the subject, especially as the technology available for use is

continually becoming more sophisticated.’ These statements

were reiterated in Amann v Switzerland 30 EHRR 843. As I have explained, that approach to the question whether the measure provides sufficient protection against arbitrary interference was applied, in the context of criminal records and other intelligence, in Rotaru v Romania, where the finding that

the interference was not ‘in accordance with the law’ was based

on the absence from the national law of adequate safeguards. The condemnation of Part V of the 1997 Act in MM v United Kingdom is based on an application of the same approach. Put shortly, legislation which requires the indiscriminate disclosure by the state of personal data which it has collected and stored does not contain adequate safeguards against arbitrary interferences with article 8 rights.

114. This issue may appear to overlap with the question

whether the interference is ‘necessary in a democratic society’:

a question which requires an assessment of the proportionality of the interference. These two issues are indeed inter-linked, as I shall explain, but their focus is different. Determination of whether the collection and use by the state of personal data was necessary in a particular case involves an assessment of the relevancy and sufficiency of the reasons given by the national authorities. In making that assessment, in a context where the aim pursued is likely to be the protection of national security or public safety, or the prevention of disorder or crime, the court allows a margin of appreciation to the national authorities, recognising that they are often in the best position to determine the necessity for the interference. As I have

explained, the court’s focus tends to be on whether there were

adequate safeguards against abuse, since the existence of such safeguards should ensure that the national authorities have addressed the issue of the necessity for the interference in a manner which is capable of satisfying the requirements of the Convention. In other words, in order for the interference to be

‘in accordance with the law’, there must be safeguards which

have the effect of enabling the proportionality of the interference to be adequately examined. Whether the interference in a given case was in fact proportionate is a separate question.

…

119. In the light of the judgment in MM v United Kingdom, it is plain that the disclosure of the data relating to the

respondents’ cautions is an interference with the right protected

by article 8.1. The legislation governing the disclosure of the data, in the version with which these appeals are concerned, is indistinguishable from the version of Part V of the 1997 Act which was considered in MM. That judgment establishes, in my opinion persuasively, that the legislation fails to meet the

requirements for disclosure to constitute an interference ‘in

accordance with the law’. That is so, as the court explained in

MM, because of the cumulative effect of the failure to draw any distinction on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought, and the absence of any mechanism for independent review of a

decision to disclose data under section 113A.”

37. This decision is treated by the respondents as authority for the proposition that a measure may lack the quality of law even where there is no relevant discretion and the relevant rules are precise and entirely clear, if the categories requiring to be disclosed are simply too broad or insufficiently filtered. I do not accept this submission.

38. In the first place, it is hardly conceivable that Lord Reed intended to effect a revolution in this branch law the law, with such far-reaching results, and without acknowledging the fact. On the contrary, it is clear that he did not. He regarded himself as applying the established case law of the Strasbourg court. All of the Strasbourg decisions on which he based his analysis, notably Kopp, Malone, Rotaru, Amann and MM, had been expressly based on the classic dual test of accessibility and foreseeability. In particular, Lord Reed regarded the decision in MM as reflecting the earlier jurisprudence. In all of these cases, safeguards were said to be required in order to constrain administrative discretions which, unless constrained,

undermined the foreseeability of the relevant measures. Lord Reed’s reference to

the need for precision if something is to have the character of law shows that he had the foreseeability test well in mind. He is echoing the observations in Sunday Times, (para 49), Silver (para 88) and Malone (para 70), that a person must be able to discover from the law itself precisely what effect, in the circumstances of his case, its application will have upon him.

39. Secondly, in distinguishing between the legality test and the proportionality test, Lord Reed pointed out at para 114 that:

“in order for the interference to be ‘in accordance with the law’,

there must be safeguards which have the effect of enabling the

proportionality of the interference to be adequately examined.”

I agree. This paragraph is part of Lord Reed’s defence of the decision in MM against

the criticisms of counsel for the Secretary of State. The point which he is making is that the principle of legality is concerned with the quality of the domestic measure whereas the proportionality test is usually concerned with its application in particular cases. Unless the domestic measure has sufficient clarity and precision for its effect to be foreseeable from its terms, it is impossible for the court to assess its proportionality as applied to particular cases. But if the effect of the measure in particular cases is clear from its terms, there is no problem in assessing its proportionality.

40. Thirdly, at para 119, where Lord Reed explains his disposal of the appeal, he is expressly applying MM. That decision, as I have pointed out, had been based on the perceived “absence of a clear legislative framework for the collection and

storage of data” (emphasis supplied) which would fall to be mandatorily disclosed under sections 113A and 113B of the Police Act 1997. The absence of any “clear legislative framework” for the recording and retention of criminal records meant

that the body of data falling to be mandatorily disclosed was of uncertain content. The uncertain character of the system for retaining criminal records affected the lawfulness of their disclosure. Hence the relevance of the indiscriminate character of the disclosure which Lord Reed criticises at para 119.

41. In a precedent-based system, the reasoning of judges has to be approached in the light of the particular problem which was before them. There is a danger in

treating a judge’s analysis of that problem as a general statement of principle

applicable to a whole area of law. Lord Reed’s observations in T cannot in my

opinion be applied generally to the whole relationship between legality and proportionality in the Convention, even in cases where the relevant domestic rule satisfied the tests of accessibility and foreseeability. It is noticeable that the principle of legality was stated in narrower terms by Baroness Hale, Lord Reed and Lord Hodge in their joint judgment in Christian Institute v Lord Advocate [2016] UKSC 51. They put it in this way at paras 79-80:

“79.	In order to be ‘in accordance with the law’ under article

8(2) of the ECHR, the measure must not only have some basis in domestic law - which it has in the provisions of the Act of the Scottish Parliament - but also be accessible to the person concerned and foreseeable as to its effects. These qualitative requirements of accessibility and foreseeability have two elements. First, a rule must be formulated with sufficient precision to enable any individual - if need be with appropriate advice - to regulate his or her conduct (The Sunday Times v United Kingdom, para 49; Gillan v United Kingdom, para 76). Secondly, it must be sufficiently precise to give legal protection against arbitrariness:

‘[I]t must afford a measure of legal protection against

arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law ... for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of domestic legislation - which cannot in any case provide for every eventuality - depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to

whom it is addressed.’ (Gillan, para 77; Peruzzo v

Germany, para 35)

80. Recently, in R (T) v Chief Constable, Greater Manchester Police, this court has explained that the obligation to give protection against arbitrary interference requires that there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined. This is an issue of the rule of law and is not a matter on which

national authorities are given a margin of appreciation.”

On this analysis, with which I agree, the statements in T about the need for

safeguards against “arbitrary” interference with Convention rights, are firmly placed

in their proper context as referring to safeguards essential to the rule of law because they protect against the abuse of imprecise rules or unfettered discretionary powers.

Application to the present appeals

42. The rules governing the disclosure of criminal records, both by ex-offenders themselves under the Rehabilitation of Offenders Act 1974 and by the Disclosure and Barring Service and AccessNI under the Police Act 1997, are highly prescriptive. The categories of disclosable convictions and cautions are exactly defined, and disclosure in these categories is mandatory. Within any category, there is no discretion governing what is disclosable. There is no difficulty at all in assessing the proportionality of these measures because, subject to one reservation (see the following paragraph), their impact on those affected is wholly foreseeable.

43. The one reservation arises from a submission made to us that on an application for an enhanced criminal record certificate under section 113B of the

Police Act, it would be open to a chief officer of police, if he thought that it “ought

to be included”, to call for the inclusion in the certificate of a conviction or caution

which was not a “relevant matter” because it did not fall within any of the defined

categories of disclosable conviction under section 113A(6). I assume (without deciding) that this course was open to the chief officer. But it would not deprive the legislation of the quality of law, because section 113B(4A) requires chief officers to exercise this function having regard to statutory guidance published by the Secretary of State. This provision was inserted by the Protection of Freedoms Act 2012, which was shortly followed by the publication of detailed guidance in July of that year. It

is well established that guidance provided for by statute may constitute “law” for

the purpose of the Convention: R (Purdy) v Director of Public Prosecutions [2010] AC 345, para 47 (Lord Hope). The judgment of the chief officer is subjected to carefully drawn constraints that themselves have the quality of law.

44. In these circumstances, the only basis on which it could be said that the legislation lacks the quality of law is that the content of the classes of criminal record available for mandatory disclosure is itself uncertain, because of the uncertain or discretionary character of the rules governing their retention in the Police National Computer, or the Causeway System which serves the same purpose in Northern Ireland. This was, as we have seen, the criticism made of the earlier version of the legislation as it applied in Northern Ireland, by the Strasbourg court in MM. In the three English cases it was argued in the Court of Appeal that the retention of their records on the Police National Computer was itself a breach of article 8 of the Convention. The argument was rejected and has not been repeated before us. It would not in any event have affected the legality of the system of disclosure for the following reason. As I have pointed out above (para 26), what is consistent with the legality test at the stages of collection and retention, may depend on how much of it is liable to be disclosed under the Police Act. The reason why the uncertain content of the criminal record database was so significant in MM was that at the relevant

time any conviction or caution on the database was liable to “indiscriminate”

disclosure, without exception. That has not been the case either in England and Wales or in Northern Ireland since 2014. It is no longer correct to say, as Lord Reed quite rightly did about the unamended scheme considered in T (para 119), that the statutory scheme fails to draw distinctions by reference to the nature of the offence, the disposal of the case or the time which has elapsed since the offence took place. It is still the case that it fails to draw distinctions based on the relevance of the conviction to a potential employer on more general grounds; and it still does not provide a mechanism for the independent review of disclosure. However, even on the most expansive view of what was decided in T, nothing in that case suggests that these two factors are on their own enough to deprive the legislation of the quality of law. The current legislation distinguishes, 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 which have passed. Of course, there may be arguments for more or fewer, or wider or narrower categories, but the legality test is a fundamentally unsuitable instrument for assessing differences of degree of this kind. A decision that the current regime governing retention and disclosure of criminal records lacked the quality of law would mean that it would be incompatible with the Convention even if, hypothetically, it could be shown that nothing short of it would sufficiently protect children and vulnerable adults from substantial risks of abuse or protect the public interest in the appointment of suitable people to highly sensitive positions. I decline to accept that proposition. It would have the practical effect of equating the right of privacy with such absolute provisions of the Convention as the prohibition of torture and slavery, when the terms of article 8 show that the right of privacy is qualified.

45. I conclude that the current scheme of disclosure under the Rehabilitation of Offenders Act 1974 (as amended) and the Police Act 1997 (as amended), and the corresponding legislation in Northern Ireland, are in accordance with the law for the purposes of article 8 of the Convention.

Proportionality

46. There are, as it seems to me, only three ways in which the question of disclosing criminal records of candidates for sensitive occupations could have been addressed: (i) by legislating for disclosure by reference to the pre-defined categories of offence, offender or sentence in the legislation as it stands; (ii) by legislating for disclosure by reference to some differently drawn categories of offence, offender or sentence; or (iii) by legislating for disclosure by reference to the circumstances of individual cases, as ascertained by some process of administrative review. Accordingly, two questions fall to be decided. The first is whether the legislation can legitimately require disclosure by reference to pre-defined categories at all, as opposed to providing for a review of the circumstances of individual cases. If it can, then the second question is whether the boundaries of these categories are currently drawn in an acceptable place. It is common ground that, for the purpose of assessing the proportionality of the scheme, the legislature and ministers exercising statutory powers have a margin of judgment, within limits.

47. I shall deal first with the question whether the legislation can legitimately require disclosure by reference to pre-defined categories at all, rather than the circumstances of each case. If not, then manifestly the present legislative scheme will not pass muster.

48. In principle, the legitimacy of legislating by reference to pre-defined categories in appropriate cases has been recognised by the Strasbourg court for many years. The fullest modern statement of the law is to be found in its decision in Animal Defenders International v United Kingdom (2013) 57 EHRR 21, where the court summarised the effect of a substantial body of earlier case law. At paras 106-110, the court observed:

“106. … It is recalled that a state can, consistently with the

Convention, adopt general measures which apply to pre- defined situations regardless of the individual facts of each case

even if this might result in individual hard cases …

107. The necessity for a general measure has been examined by the court in a variety of contexts such as economic and social policy and welfare and pensions. It has also been examined in the context of electoral laws; prisoner voting; artificial insemination for prisoners; the destruction of frozen embryos; and assisted suicide; as well as in the context of a prohibition on religious advertising.

108. It emerges from that case law that, in order to determine the proportionality of a general measure, the court must primarily assess the legislative choices underlying it. The quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation. It is also relevant to take into account the risk of abuse if a general measure were to be relaxed, that being a risk which is primarily for the state to assess. A general measure has been found to be a more feasible means of achieving the legitimate aim than a provision allowing a case-by-case examination, when the latter would give rise to a risk of significant uncertainty, of litigation, expense and delay as well as of discrimination and arbitrariness. The application of the general measure to the facts of the case remains, however, illustrative of its impact in practice and is thus material to its proportionality.

109. It follows that the more convincing the general justifications for the general measure are, the less importance

the court will attach to its impact in the particular case …

110. The central question as regards such measures is not, as the applicant suggested, whether less restrictive rules should have been adopted or, indeed, whether the state could prove that, without the prohibition, the legitimate aim would not be achieved. Rather the core issue is whether, in adopting the general measure and striking the balance it did, the legislature

acted within the margin of appreciation afforded to it.”

49. The court’s reference in para 108 to the risk of uncertainty is supported by a footnote citation of its earlier decision in Evans v United Kingdom (2008) 46 EHRR 34. In that case, it held that the absence of any provision for individual scrutiny in legislation requiring the consent of both parties to the implantation of stored embryos was consistent with article 8 of the Convention. The Grand Chamber found

(para 60) that “strong policy considerations underlay the decision of the legislature

to favour a clear or ‘bright-line’ rule which would serve both to produce legal

certainty and to maintain public confidence in the law in a sensitive field.” It went

on to observe, at para 89:

“While the applicant criticised the national rules on consent for

the fact that they could not be disapplied in any circumstances, the court does not find that the absolute nature of the law is, in itself, necessarily inconsistent with article 8. Respect for human dignity and free will, as well as a desire to ensure a fair balance between the parties to IVF treatment, underlay the

legislature’s decision to enact provisions permitting of no

exception to ensure that every person donating gametes for the purpose of IVF treatment would know in advance that no use could be made of his or her genetic material without his or her continuing consent. In addition to the principle at stake, the absolute nature of the rule served to promote legal certainty and to avoid the problems of arbitrariness and inconsistency inherent in weighing, on a case by case basis, what the Court

Gallagher, the challenge is to the requirement to self-declare convictions.

161. Although, as I have said, not every element of the conventional features of a legal interference with a Convention right need be present in order for the requirement of legality to be met, it is essential that, in the final analysis, safeguards intrinsic to the scheme will allow for a proper assessment of proportionality. It is against this critical yardstick that the legality of any scheme must be measured. The other elements in the legality equation can be regarded as a sub-set of this basic concept.

162. In my view, neither the scheme in England and Wales introduced by the 2013 reforms nor that in Northern Ireland brought about by the 2014 amendments meets this fundamental requirement. It is not possible to judge whether the operation of either scheme would be proportionate in cases which fall into the categories where disclosure is mandated. In some instances, disclosure might well be proportionate; in others it might be wildly disproportionate. There is simply no way of assessing this if the scheme in England and Wales continues in its present form. Leaving aside the question whether there needs to be individual consideration of particular cases, there is no way of calculating whether the scheme as a whole works in a proportionate way. It is unquestionably true, as the appellants submit, that the examples which these particular cases provide should not be taken as generally representative of the effect of the scheme. But it is equally true that one has no means of knowing that they are not. What the cases show is that there is at least the potential for widespread disproportionate outcomes in the disclosure of data if the present system continues. For that reason, it cannot be said that there are safeguards to the scheme which allow its proportionality to be adequately examined.

163. It is no answer to this central flaw in the scheme to say that it is the inevitable consequence of a bright line rule. That argument might have force if it were possible for the appellants to show that, in general, the scheme operates in a proportionate

way and that cases “at the margins” should not detract from its overall effect. In this

instance, the appellants cannot make that claim.

164. It is clear from the deliberations which preceded the introduction of the 2013 reforms (described in paras 117-137 above) that the question of how the scheme could be framed so that the safeguards which it contained would allow for an adequate examination of its proportionality was not addressed. This is perhaps not

surprising. Mrs Mason’s task was to come up with a suggested classification of types

of offence rather than to propose how the overall scheme might contain safeguards that would illuminate its proportionality. Moreover, the 2013 reforms were

considered before Lord Reed’s clear statement on what role safeguards had to play

in the assessment of proportionality. That statement now provides authoritative and recent guidance on how the question should be approached. Although there was debate as to its significance, there was no suggestion that we should depart from it. For my part, I consider that its meaning and import are clear.

165. What safeguards might be incorporated into the disclosure scheme which would allow its proportionality to be examined? Sir James Eadie QC, appearing for the SoSs, invited this court, in the event that it dismissed the appeal, to indicate what modifications to the scheme in England and Wales might be made. While it is, of course, not for this court to propose specific changes to legislation (and Sir James did not suggest otherwise), it seems to me that a provision which linked the relevance of the data to be disclosed to the nature of the employment sought might go some way to achieving that goal. At present the scheme makes no provision for consideration of the propriety of disclosing information according to the type of post for which the individual has applied.

166. Two objections to this proposed modification are raised. First, it is suggested that employers are in the best position to make a judgment about the relevance of convictions to the prospective employment and that disclosure should be made so that they can make that judgment. It would be wrong, so the argument goes, to pre- empt their consideration of possibly relevant material. Second, it is claimed that to impose such a requirement on DBS would unwarrantably increase its burden in having to evaluate individual cases.

167. The argument that employers are in the best position to make a judgment about the relevance of convictions addresses the question from a single perspective - that the standard position should be that disclosure be made of all material that might remotely, even unexpectedly, be relevant. Lord Sumption has said that the

evidence available to support the argument that “employers cannot be trusted to take

an objective view of the true relevance of a conviction, is distinctly thin”. Well, the

evidence of the four cases involved in this appeal must go some considerable way to support the assertion. And there is certainly no evidence to sustain the notion that these cases are in any sense untypical. It would surely be impossible to quarrel with

what Lord Wilson said in T at para 45: “In these days of keen competition and

defensive decision-making will the candidate with the clean record not be placed ahead of the other, however apparently irrelevant his offence and even if otherwise

evenly matched?”

168.     The notion of a “killer blow” to the prospects of employment resulting from

the disclosure of even minor and unrelated offences (cf Lord Neuberger in R (L) v Comr of Police of the Metropolis [2010] 1 AC 410, at para 75 and referred to in para 52 by Lord Sumption) can be overstated. But, in my view, it is wholly unrealistic not to recognise that many employers, faced with a choice of candidates of roughly similar potential, would automatically rule out the one with a criminal record. That consideration simply cannot be ignored by the disclosure authority. Indeed, Lord Sumption accepts as much in the final sentence of para 52.

169. It is, thus, incumbent on those responsible for devising a scheme of disclosure to be aware that at least some employers will regard the existence of a criminal record as an automatic bar to choosing the candidate with the record. Where, therefore, it is abundantly obvious, as in many cases it will be, that the criminal record of an individual could have no conceivable relevance to the position for which he or she applies, a system in which disclosure is not made is not only feasible but essential.

170. As to the second objection, there is no reason to suppose that a system could not be devised whereby a correlation (or, more importantly, the lack of one) between the criminal record and the position applied for could be identified. This would obviate the need for individual consideration of every case. Thus, by way of example, if the position applied for did not involve contact with vulnerable adults or children and the criminal record of the person applying consisted of two convictions for shoplifting, both committed when the applicant for employment was considerably younger, it would undoubtedly be disproportionate to disclose his or her record. Although this is a specific example, a code could surely be devised that would cater for that type of case. As it is, under the present system, more than one conviction will, automatically and unavoidably, require disclosure.

171. Indeed, the current process does not reflect some of the recommendations made by Mrs Mason and her team. As recorded in para 124 above, in her report of 11 February 2011 she said that the government should implement an appropriate

form of filtering in the CRB process that “removes conviction information that is

undeniably minor, and which cannot be classed as anything other than old”. This

does not happen, as the case of P exemplifies. It is true, of course, that Mrs Mason considered that where there was more than one, even minor, conviction, there should be disclosure. But this was because she felt that more than one conviction might be an indicator of a pattern of offending. The case of P clearly demonstrates that more than one conviction does not, of itself, indicate a pattern of criminal behaviour. Again, without requiring individual examination of every case, it should surely be possible to come up with a system which more reliably tests whether a person who has been found guilty of more than one offence should be considered to have displayed a pattern of offending. Thus, for instance, the age of the offences and/or their wholly disparate nature could act as a filter. If two offences of wholly different character were committed several years before the question of disclosure arose and if neither was remotely relevant to the position that had been applied for, could it possibly be said to be proportionate to disclose them? To exclude such offences - as a matter of general filtering, rather than consideration of the individual circumstances of the case - would be a sensible, workable system. The suggestion that such offences be included in the disclosure package places far too high a premium on the prospect of an adventitious outcome to the disclosure of material which has no obvious or ready connection with the post that has been applied for.

172. Disclosing apparently irrelevant and ancient criminal convictions comes at a price. That is the undermining of the aims of the 1974 Act. In his judgment in the Court of Appeal in the T case, Lord Dyson MR in para 39 explained why this was so:

“… The disclosure regime was introduced in order to protect

children and vulnerable adults. That objective is not furthered by the indiscriminate disclosure of all convictions and cautions to a potential employer, regardless of the circumstances. A blanket requirement of disclosure is inimical to the 1974 Act and the important rehabilitative aims of that legislation. Disclosure that is irrelevant (or at best of marginal relevance)

is ‘counter to the interests of re-integrating ex-offenders into

society so that they can lead positive and law-abiding lives’:
see Mrs Mason’s Phase 2 report, at p 19 …”

173. Although the reforms of 2013 (in England and Wales) and 2014 (in Northern Ireland) have reduced the categories in which automatic disclosure will be made, the blanket requirement of disclosure within the remaining categories endures. There is no reason to suppose that disclosure that is irrelevant or of marginal relevance will not continue to occur within the fewer categories that are the result of the reforms. The reduction of the number of categories does not eliminate the essential problem.

174. For this reason, the other possible safeguard which might enhance the opportunity for a proper investigation of the proportionality of the interference with article 8 rights is a review mechanism such as that introduced in Northern Ireland in 2016. It has been suggested that this would create an impossible logistical burden for the authorities and, in this regard, reference has been made to the statistics produced by Ms Foulds (referred to at para 136 above). Those statistics were produced to indicate the scale of operation that would be required if every application for data disclosure had to be examined in detail as to its particular circumstances. The experience of the working of the Northern Irish model does not indicate that a substantial percentage of proposed disclosures will prompt applications to the reviewer. At present, therefore, there is no evidence that this is not a perfectly viable option for England and Wales.

175. It is important to point out that I do not propose that every application should be subject to individual review. I accept the reservations expressed by Mr Woodcock (see para 135 above) that to require the authorities to examine every case for its particular circumstances could lead to inconsistency of treatment and be a considerable charge on available resources. The modifications to the present system which I propose do not involve a requirement that every application be considered individually.

Lord Sumption’s judgment on the question of legality

176. In para 10, Lord Sumption says that the risk of impeding the prospects of employment of ex-offenders and the risk that unsuitable persons may be allowed to occupy sensitive positions are not only competing factors, they are incommensurate. Quite so. But this does not relieve the court of its obligation to confront the question

whether the interference with citizens’ article 8 rights which the current system

entails is in accordance with the law. The examination of that issue should be no less rigorous on account of the difficulty and sensitivity of the competing factors. It is true that a great deal of thought and expert advice went into the design of the current system. But, for the reasons given above (see para 164) all of that careful preparation did not include consideration of the critical question as to how the safeguards built into the scheme would allow for a proper vouching of its proportionality.

177. As Lord Sumption said in para 13, Sir Brian Leveson P held that the

legislation was not “in accordance with the law” because, although it discriminated

between different categories of offence and convictions, the categories were still too broad. In my view, however, the principal reason for finding that the legislation is not in accordance with the law is not because of the width of the categories but because of its inscrutability in terms of assessing the proportionality of the measures which it prescribes.

178. In para 14 Lord Sumption states that the condition of legality relates to the characteristics of the legislation itself, and not just to its application in the present case, citing Kruslin v France (1990) 12 EHRR 547, paras 31-32. And that the declarations which are proposed will mean that, while the current legislation will remain in force as a matter of domestic law until it is amended, it is nevertheless to be regarded as incompatible with article 8, not just as applied to minor offenders

like the respondents, but “to the entire range of ex-offenders including, for example,

convicted child molesters, rapists and murderers.” Inevitably, reference to serious

offenders such as are included in Lord Sumption’s account sparks concern. But, as

he acknowledges, the legislation remains in force until Parliament, if it decides to, chooses to amend it. There is no realistic prospect of serious offending such as Lord Sumption has instanced coming within the purview of a regime forbidding the disclosure of criminal records. The declarations which have been made by the Courts of Appeal in England and Wales and Northern Ireland, and which I propose should be upheld, do not portend the extension of exemption from the scheme of disclosure to offenders such as these. Quite clearly, under a revised scheme such as is envisaged by this judgment, there is no question that offences such as Lord Sumption has described would continue to be included in the disclosure regime. The proportionality of a scheme requiring offences such as these to be disclosed would not be open to doubt.

179. The prospect of the principle that safeguards sufficient to allow an examination of the proportionality of an interference with an article 8 right being applied to other qualified rights has been raised by Lord Sumption in para 12. I consider that this is a prospect which can be faced with sanguinity. The articles referred to by Lord Sumption, article 5 (right to liberty and security), article 9 (freedom of thought, conscience and religion), article 10 (freedom of expression), and article 11 (freedom of assembly and association), if interfered with by domestic legislation are just as amenable to the incorporation of safeguards capable of establishing their proportionality as is article 8.

180.     Lord Sumption suggests that in none of these articles “would there be any

scope for distinctions based on judgment or discretion or weighing of broader public interests, even on the most compelling grounds, once the relevant measure failed the

majority’s exacting test of legality”. This, with respect, misses the point. Provided

there is a sufficient basis on which the proportionality of the measure can be judged, the debate as to its propriety remains entirely open. It is only where the reason for

the interference is unexplained and indiscernible that the “exacting test of legality”

is failed.

181.     In paras 16-22 Lord Sumption has traced what he considers to be the contours

of Strasbourg jurisprudence in relation to what the expression “in accordance with

law” means. He suggests that in Huvig v France (1990) 12 EHRR 528, para 26 and

Kruslin v France (1990) 12 EHRR 547, para 27, the ECtHR has set out the classic definition of law in this context and that a dual test of accessibility and foreseeability for any measure which is required to have the quality of law was established.

182. Accessibility and foreseeability are undoubtedly aspects of the requirement that an intrusive measure be in accordance with law. But they are not comprehensive of that concept. An intervention with a qualified right which cannot on its face be examined for its purpose and proportionality will be equally objectionable to one which cannot be readily accessible or whose application cannot readily be foreseen.

183.     At para 37 Lord Sumption expresses the view that the decision in T is treated

by the respondents “as authority for the proposition that a measure may lack the

quality of law even where there is no relevant discretion and the relevant rules are precise and entirely clear, if the categories requiring to be disclosed are simply too

broad or insufficiently filtered.” This is wrong. The reason for considering that the

current legislation is not in accordance with the law is not because the categories are too broad or insufficiently filtered; it is because they do not permit an adequate examination of their proportionality. The requirement that the safeguards provide an opportunity for examination of the proportionality of the interference with a Convention right adds a further dimension to the dual test of accessibility and

foreseeability. Lord Sumption’s analysis dismisses this essential extra dimension.

184. At para 31 of his judgment, Lord Sumption quotes para 94 of the recent decision of ECtHR in Catt v United Kingdom (Application 43514/15). It should be noted, however, that the Strasbourg court in that case (in paras 106 and 107) made it clear that it did not consider it necessary to decide whether the interference was

“in accordance with law” within the meaning of article 8.2.

185. Moreover, Judge Koskelo, in a separate judgment which concurs with the majority as to outcome, expresses misgivings as to the propriety of that course. At

paras 1-4 of Judge Koskelo’s judgment she said:

“1.	I agree with the outcome of this case, namely that there

has been a violation of the applicant’s rights under article 8 of

the Convention. The majority in the Chamber have reached this conclusion following an analysis as to whether the impugned

interference was ‘necessary’ within the meaning of article 8.2

of the Convention. I do not have any major objections to the essence of that analysis as such. The misgivings I have are in relation to the preceding analysis of whether the interference

with the applicant’s rights under article 8 was ‘in accordance

with the law’. On this point, the majority do identify a number

of concerns but consider that it is not necessary in the present case to reach any firm conclusion as to whether the requirement of lawfulness has been met. Regrettably, I find the approach adopted in this respect lacking in firmness as well as in consistency with existing case law.

2.         According to the court’s well-established case law, the

phrase ‘in accordance with the law’ in article 8.2 of the

Convention requires not only that the impugned measure must have a basis in domestic law but that it must also be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and is inherent in the object and purpose of article 8. Thus, the requirement of lawfulness also refers to the quality of the law in question. This entails that the law should be adequately accessible and foreseeable as to its effects, that is to say formulated with sufficient precision to enable any individual - if need be with appropriate advice - to regulate his conduct (see, for instance, S and Marper v United Kingdom [GC], nos 30562/04 and 30566/04, para 95, ECHR 2008)

3. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and, accordingly, indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of the domestic law - which cannot provide for every eventuality - depends to a considerable degree on the context and content of the law in question, such as the field it is designed to cover (ibid para 96).

4. In the field of data protection, the court has considered it essential for the applicable law to provide clear, detailed rules governing the scope and application of the relevant measures as well as sufficient guarantees against the risk of abuse and arbitrariness at each stage of the processing of personal data (see MM v United Kingdom, no 24029/07, para 195, 13 November 2012, and Surikov v Ukraine, no 42788/06, para 74, 26 January 2017; both with further references). These are

indeed crucial requirements …”

186.     It is clear that, in Judge Koskelo’s view, that there must be unambiguous rules

which govern the application of the measures under challenge and sufficient guarantees against the risk of abuse and arbitrariness in their application. Even

where “there is no relevant discretion and the rules are clear, if the categories

requiring to be disclosed are too broad or insufficiently filtered” (cf Lord Sumption’s

judgment at para 37), the question remains whether there are sufficient guarantees in place. For the reasons which I have given, I do not consider that there were. On

that account Catt does not represent an endorsement of the majority’s position in the

present case.

187. In paras 38-40, Lord Sumption seeks to confine the judgment of Lord Reed in T to what he describes as “the classic dual test of accessibility and foreseeability”. This, I am afraid, cannot be accepted. It is abundantly clear from Lord Reed’s judgment in T that he went beyond this “dual test” by articulating a requirement that

the safeguards inherent in the scheme of disclosure should be sufficiently transparent as to allow a judgment as to the proportionality of any interference with a qualified

Convention right to be assessed. And I do not consider that Lord Sumption’s

reference to the judgment in Christian Institute v Lord Advocate [2016] UKSC 51

assists his thesis. In para 80 of that judgment, it is firmly stated that “there must be

safeguards which have the effect of enabling the proportionality of the interference

to be adequately examined.” That is a requirement which is quite independent of the

need for accessibility and foreseeability.

Proportionality

188. It is common case that, if the current scheme in England and Wales can be regarded as in accordance with law, it nevertheless constitutes an interference with the article 8 rights of the respondents and therefore calls for justification under article 8.2 of ECHR. The claimed justification rests primarily on the assertion that a bright line rule, drawn on the lines of the current policy, is warranted and required.

189. The appeals in this case expose the poverty of that argument. How can it possibly be said that it is necessary to reveal to prospective employers that someone engaged in sexual experimentation at the age of 11, when he has an unblemished record in the many years since? Or that someone was convicted of assault occasioning actual bodily harm at the age of 16, who has led a blameless life since then? Likewise, in the cases of P and Mrs Gallagher.

190. These cases should not be consigned to the category of unfortunate casualties at the margins. They represent the significant impact that the current policy choice has on a potentially substantial number of individuals. It is entirely possible to draw the boundaries for disclosable information at a level that would exclude persons such as the respondents in this case. I consider, therefore, that the disclosure of the criminal records of the four respondents is plainly disproportionate.

Conclusion

191. I would dismiss the appeals and affirm the declarations of incompatibility which both Courts of Appeal propose.