R (T) v (1) Chief Constable of Greater Manchester Police, (2) Secretary of State for the Home Department (Secretary of State for Justice an interested party) [2012] EWHC 147 (Admin)
In July 2002, the Claimant was 11 years old. He received a warning (a private procedure, under the Crime and Disorder Act 1998) from Greater Manchester Police for the theft of two bicycles. His subsequent conduct was apparently exemplary. By section 113B of the Police Act 1997, Enhanced Criminal Record Certificates (ECRCs) must contain all convictions, cautions and warnings.The Claimant, a 20-year old student applying for a sports studies course, obtained his ECRC in December 2010. It contained details of the bike theft warning.
He argued that the inflexible requirement under the 1997 Act for all convictions, cautions and warnings to be disclosed in ECRCs was incompatible with Article 8 of the ECHR.
With overt reluctance, Kenneth Parker J dismissed the claim.
His decision was based on the analysis of R (L) v Commissioner of Police for the Metropolis [2009] UKSC 3 [2010] 1 AC 410, where the majority of the Supreme Court decided that the disclosure of “information” (under s. 115(6) of the 1997 Act) potentially breached Article 8. Such a breach would be justified only if (a) the information is relevant to the decision for which the ECRC is required, and (b) disclosure is proportionate, taking into account factors such as the gravity of the material, the reliability of the information on which it was based, the relevance of the material to the particular job application, the period since the relevant events and the impact on the applicant of including the material in the ECRC.
The disclosure of “information” was, however, a separate matter from the disclosure of convictions, cautions and warnings. It was clear from L that, insofar as it required the latter, the 1997 Act was not open to challenge under Article 8.
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