11/02/2026
Written by: Aidan Wills
Background
This consolidated appeal arose from four judicial review claims challenging the mandatory disclosure of certain information about spent criminal convictions and reprimands (“convictions”). Each of the claimants applied for or wished to apply for work involving young and/or vulnerable people meaning that information about their convictions for minor historic offences (which in the cases of several of the appellants arose when they were children) was or would have to be disclosed either by them (when required to answer questions from prospective employers) and/or through a criminal records certificate produced by the Disclosure and Barring Service. This prevented them from obtaining work or had a chilling effect on their willingness to apply.
These disclosures were required by operation of the s 4(4) of the Rehabilitation of Offenders Act 1974, taken with the Rehabilitation of Offenders Act (Exceptions) Order 1975, and s 113A-B of the Police Act 1997 (and their Northern Ireland equivalents). The challenges focussed on requirements to disclose all spent convictions and cautions if a person had more than one (“the multiple convictions rule”), any conviction on a list of specified “serious offences,” and reprimands and warnings given to children (which have now been replaced by youth cautions). The claimants challenged these rules as being incompatible with their right to a private and family life under Article 8 ECHR. Each of them succeeded in the lower courts and the Secretaries of State appealed to the Supreme Court.
Decision
By a majority, the Supreme Court rejected the contention that the interferences were not in accordance with the law for the purposes of Article 8(2) ECHR. The legislation mandated, in clear and prescriptive terms, the disclosure of the convictions in issue – the interferences with Article 8(1) were “foreseeable” and thus in accordance with law. In reaching this conclusion, the majority rejected the submission that Lord Reed’s judgment in R (T) v Chief Constable of Greater Manchester Police [2015] AC 49 (para 114) is authority for the proposition that a clear non-discretionary measure/rule of general application may not have the quality of law if it is applies too widely or is not accompanied by safeguards ensuring review/assessment (in this case of whether convictions information should be disclosed) of proportionality on a case-by-case basis.
The Court accepted that legislation could legitimately require disclosure of convictions with reference to pre-defined categories (i.e. bright line rules), without any assessment of the facts of each case. Where such rules are challenged, “the task of the court in such cases is to assess the proportionality of the categorisation and not of its impact on individual cases” [50].
After undertaking this task, the Court held that two aspects of the scheme could not be justified as being proportionate to the aim of disclosing to employers criminal records indicating a propensity to offend. That was for two reasons. First, the multiple conviction rule applied irrespective of the nature of the offences, their similarity, or the time separating them. That meant it was not capable of showing a propensity to commit further offences and had capricious impacts. Second, the requirement that warnings and reprimands (which do not require the determination of any charge) issued to young offenders be included in disclosures to employers could not be justified.
The Court dismissed three of the four appeals and made declarations that the relevant provisions were incompatible with Article 8 ECHR. The Court allowed the appeal in W’s case because the rule requiring the disclosure of convictions for violent offences was not disproportionate.
Comment
This is an important decision clarifying the law on the “in accordance with” or “prescribed by” law limb of qualified ECHR rights and its relationship with the requirement that interferences be necessary in a democratic society. Lord Sumption’s detailed analysis of the domestic and European authorities remains the leading judgment on this issue.
The decision on these appeals led to important changes in the law in 2020 to provide better protection to rehabilitated persons, through the abolition of (i) the multiple convictions rule (convictions are now assessed individually) and (ii) the automatic disclosure youth cautions; see Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020, and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020.
Matrix members
Hugh Southey KC and Nick Armstrong KC for the Claimant in P’s case
Tim Owen KC for the Claimant in W’s case
Jesse Nicholls for Unlock, an intervener