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Requiring disclosure by aspiring police constables of all convictions and cautions is compatible with Article 8 ECHR, says Court of Appeal

R (on the application of RD) v Secretary of State for Justice & Ors [2020] EWCA Civ 1346

Related Member(s):
Hugh Southey QC
Related Practice Area(s):
Human Rights, Employment Law, Police Law, Public Law
Court:

Aged 13, the respondent RD was arrested and reprimanded for stealing an item of clothing worth £20. Eight years later she unsuccessfully applied to South Wales Police for a job as a service support officer, her application being rejected due to her disclosure of the reprimand despite an otherwise unblemished criminal record. As a result of this rejection, the respondent was prevented from pursuing her desired career and suffered a major depressive illness.

The respondent applied for the deletion of this reprimand from her records but the Chief Constable decided that it should remain until she reached the age of 100. The respondent then challenged this decision by way of judicial review in the Divisional Court.

The Divisional Court decided in her favour and the reprimand has since been deleted from her record by South Wales Police. Specifically, the Court held that both the rejection of the appellant’s application, and the vetting policy applied to deal with such applications, were unlawful under Article 8 ECHR. The Court granted a declaration that the Rehabilitation of Offenders 1974 (Exceptions) Order 1975, which requires aspiring police constables to disclose spent convictions and cautions, was incompatible with Article 8.

The Divisional Court granted permission to appeal against its judgment. However, the Court suggested that the appeal should not be heard, and ordered that the declaration should not take effect, until after the Supreme Court handed down its judgment in P [2019] UKSC 3 which raised similar issues.

The Supreme Court has since handed down its judgment and the appeal against the order made by the Divisional Court was heard in the Court of Appeal. The issue before the Court was whether the legislation requiring an applicant for a position as a police constable to disclose any reprimand received as a child, regardless of the circumstances, is compatible with Article 8.

HELD: the appeal was allowed and the declaration made by the Divisional Court set aside. The requirement for full disclosure by a would-be police constable of all convictions and cautions, including reprimands received as a child, is in accordance with the law within the meaning of Article 8 ECHR and necessary in a democratic society for the prevention of disorder or crime or for the protection of the rights or freedoms of others. However, the Court added that any policy which resulted in the application of an otherwise well qualified candidate like the respondent being peremptorily rejected because of a reprimand received for minor shoplifting at the age of 13 is highly unlikely to be lawful. Similarly, police recruitment material should make it clear that a reprimand received as a child is not an automatic disqualification for appointment as a constable.

Hugh Southey QC was involved in this case.