B e f o r e :
MR JUSTICE KENNETH PARKER ____________________
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Hugh Southey QC and Nick Armstrong (instructed by Stephensons Solicitors LLP) for the Claimant Mr Ian Mullarkey (instructed by the Legal Services Department, Greater Manchester Police) for the 1st Defendant Mr Jason Coppel (instructed by The Treasury Solicitor) for the 2nd Defendant and Interested Party Hearing date: 6 December 2011 ____________________
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Mr Justice Kenneth Parker :
The Claimant, who is a 20 year old student, challenges under the European Convention on Human Rights ("the ECHR") an Enhanced Criminal Records Certificate ("ECRC") which was issued to him by the Criminal Records Bureau ("CRB"), an executive agency of the Secretary of State for the Home Department (the Second Defendant in this claim) on 6 December 2010. The ECRC, for which the Claimant had applied in order to facilitate his admission to a sports studies degree course, contained details of a warning for the theft of two bicycles which he had incurred on 22 July 2002 when he was 11 years old. The warning had been given by the Greater Manchester Police, the First Defendant in this claim.
The warning had previously been "stepped down" in 2009 under procedures then operated but had been later reinstated following the decision of the Court of Appeal in Chief Constable of Humberside Police v Information Commissioner [2009] EWCA Civ 1079 [2010] 1 WLR 1136 . It should also be observed that since the warning issued about ten years ago the Claimant has not been subject to any further criminal proceedings of any kind and indeed his conduct appears to have been exemplary.
Pursuant to Section 113B of the Police Act 1997 ("the 1997 Act") ECRCs are provided by the CRB on application by an individual who is seeking appointment to a position which involves regularly caring for, training, supervising or being in sole charge of persons aged under 18. An ECRC must include details of any convictions, cautions, warnings and reprimands recorded on the Police National Computer ("PNC"): see Section 113B(3)(a), Section 113B(9) and Section 113A(6). (The reference in Section 113A (formerly Section 113 of the Police Act 1997) to a caution is to be construed as including warnings and reprimands by virtue of Section 65(9) of the Crime and Disorder Act 1998 and Section 17(2)(a) of the Interpretation Act 1978).
A warning can be administered to a child or young person pursuant to Section 65 of the Crime and Disorder Act 1998 where inter alia the child or young person admits to a constable that he has committed an offence, has not previously been convicted of an offence and the constable is satisfied that it would not be in the public interest for the offender to be prosecuted. The warning must be given in the presence of an appropriate adult and must follow guidance promulgated by the Secretary of State. The giving of a warning is a private procedure in the sense that there is no public hearing in a criminal court where a conviction is recorded and any appropriate sentence is publicly imposed.
The Claimant contends that the requirement of the 1997 Act that warnings be disclosed on ECRCs is in breach of his right to respect for private life under Article 8 ECHR. He does not contend that the relevant provisions of the 1997 Act can be interpreted pursuant to Section 3 of the Human Rights Act 1998 so as to avoid the breach of which he complains. Therefore he seeks a declaration of incompatibility of provisions of the 1997 Act. In addition the Claimant seeks a declaration that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) ("the Order") is ultra vires. The effect of the Order is to remove in certain circumstances certain of the protections which apply to spent convictions and cautions pursuant to the Rehabilitation of Offenders Act 1974 ("the ROA").
The effect of the Order is in particular that applicants for certain categories of employment, including teaching positions, are not protected from any consequences which may flow from failing to reveal details of spent convictions, cautions, warnings and reprimands when asked to do so by a prospective employer. The Claimant has not, at least in the recent past, applied for any employment to which the Order might apply.
Challenge to Disclosure under the 1997 Act
I begin with the challenge to disclosure under the 1997 Act because the Defendants accept that following R(L) v Commissioner of Police for the Metropolis [2009] UKSC 3 [2010] 1 AC 410 (" L ") the provisions of the 1997 Act requiring disclosure of warnings on CRCs and ECRCs may interfere with the right to respect for private life under Article 8 ECHR. In L Lord Hope of Craighead DPSC explained the legislative history of the disclosure provisions and set out the effect of the current legislation as follows:
L of course concerned the disclosure of "information" under Section 115(6)(a)(ii) and (7) of the 1997 Act rather than disclosure of convictions, cautions and warnings. However, Lord Hope's analysis of the scope of Article 8 in the present context is not confined in terms to the disclosure of "information" under the 1997 Act. It expounds general observations that are of importance to the resolution of the present issue:
Disclosure of "information" was therefore permissible only if the information was, or might be, relevant. However, in an important passage Lord Hope explained why, for the purposes of proportionality under Article 8, relevance would not in every case be sufficient to justify disclosure of information:
Lord Saville of Newdigate JSC agreed with Lord Hope as did Lord Brown of Eaton-Under-Heywood JSC, who added a short judgment of his own in which he said at paragraph 63:
Lord Neuberger of Abbotsbury MR, with whom Lord Brown also agreed, gave a judgment in his own terms but did state at the end of that judgment that he agreed with the judgment of Lord Hope and that his own judgment was little more than an "echo" of those reasons more fully expressed by Lord Hope. It is important to set out the following paragraphs from the judgment of Lord Neuberger:
Lord Neuberger then went on in paragraph 81 to state that if the information might be relevant, a number of different factors needed to be weighed up, for example, the gravity of the material involved, the reliability of the information on which it was based, the relevance of the material to the particular job application, the period that had elapsed since the relevant events occurred and the impact on the applicant of including the material in the ECRC.
It is therefore apparent from L that so far as concerns information under Section 115(6)(a)(ii) of the 1997 Act there is a two-stage procedure to determine the proportionality under Article 8 of disclosure. First, the information must be considered potentially relevant to the decision for which disclosure is required and secondly disclosure should be made only after consideration of other factors exemplified by Lord Neuberger. The person to whom information relates must also have an opportunity to make representations about whether the information is reliable and relevant and whether, in all the circumstances, it ought to be disclosed. However, in my respectful opinion, Lord Neuberger made it clear at paragraph 76 that this two-stage procedure did not apply to convictions and cautions. In the case of convictions and cautions, the information in question is almost certain to be correct and the information conclusively evidences the commission of a criminal offence. There might be debate about the relevance of the conviction or caution to the decision for which disclosure is required in any particular case but in that event the prospective employer is at liberty and under current legislation entitled to know that the prospective employee has committed a crime, and to assess for herself any potential risk in offering employment to that person. It is particularly notable that, although Lord Neuberger expressly disapproved of Lord Woolf CJ's conclusions in R(X) v Chief Constable of West Midlands Police [2005] 1 WLR 65 at paragraph 41 regarding the disclosure of information, his Lordship expressly endorsed at paragraph 76 Lord Woolf's general statement at paragraph 20 of R(X) in its application to convictions and cautions.
As noted above, Lord Brown agreed with the judgments of both Lord Hope and of Lord Neuberger who, in turn, stated that his judgment largely echoed that of Lord Hope. It does, therefore, appear that at least a majority in the Supreme Court were agreed that the two stage procedure formulated by the Court was confined to information under Section 115(6)(a)(ii) of the 1997 Act and did not, as expressly articulated by Lord Neuberger, extend to convictions and cautions for the central reason given by Lord Woolf CJ in R(X) . It is correct that Lord Hope did not in terms state that convictions and cautions could lawfully be disclosed in all cases. However it is notable that Lord Hope also endorsed, at paragraph 41, the general statement of Lord Woolf CJ in R(X) at paragraph 20 and observed that no attack had been made under Article 8 on the legislation as such.
It appears to me that it is a reasonable inference from these observations that Lord Hope did not believe that such an attack was sustainable. But in this claim Mr Southey QC, on behalf of the Claimant, accepts that he must show that the legislation as such is incompatible with Article 8, a proposition which, in my view, for the reasons that I have given, cannot be reconciled with the majority judgments in L . The contention that the 1997 Act is incompatible with Article 8 ECHR is simply ruled out by the authority of L in the Supreme Court.
I appreciate that the appeal to the Supreme Court strictly concerned "information" and that, technically, the ratio might be considered to be limited to information. However, it seems to me that the Supreme Court, as part of its consideration of the issue in the appeal, did address convictions and cautions, and gave the strongest indication that different factors applied and that the disclosure provisions as such were not incompatible with Article 8 ECHR. I believe that a judge sitting at first instance should respect the conclusion of the Supreme Court on that question.
Mr Jason Coppel, who appeared on behalf of both the Secretary of State for the Home Department and the Secretary of State for Justice (the Interested Party), submitted that the present legislation, providing for the disclosure of all convictions, cautions and warnings, created clear "bright lines" which are easy to understand and apply, even if (as Lord Neuberger in L accepted) they may produce harsh results in some cases. Mr Coppel referred to other contexts where "bright line" rules had been upheld, even if at the margin the effect of the rules might be harsh or even anomalous: see, for example, R (Reynolds v Secretary of State for Work and Pensions [2006] 1 AC 173 at paragraphs 41, 45 and 51; R (Wilson) v Wychavon District Council [2008] 1 WLR 1434 , at paragraphs 56-60. In R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 884 it was contended that the prohibition on political advertising in section 321(2) of the Communications Act 2003 was incompatible with Article 10 ECHR as imposing an unjustified restraint on the right to freedom of political expression. Lord Bingham of Cornhill observed in that case that the weight to be accorded to the judgment of Parliament depended on the circumstances and the subject matter. Lord Bingham attached great weight to the judgment of Parliament in the relevant context for three main reasons, the third of which was stated as follows:
Mr Coppel also relied on Chief Constable of Humberside Police v Information Commissioner [2009] EWCA Civ 1079 ; [2010] 1 WLR 1136 , in which the Court of Appeal held that the retention of information regarding criminal convictions for, inter alia, disclosure on ECRCs was justified. One of the original complaints in Humberside was that a reprimand for common assault given when a child was 13 had been disclosed on an ECRC five years later. Mr Coppel submitted, in my view correctly, that nothing said in Humberside suggested that disclosure of convictions, cautions and warnings might be incompatible with Article 8 ECHR, and indeed it appears that the Court of Appeal proceeded on the footing that such disclosure was justifiable (see, in particular, Waller LJ at paragraph 28(b) and Hughes LJ at paragraph 111). However, the central issue in Humberside was the retention of information regarding convictions and cautions, etc. The question whether in certain circumstances disclosure of a caution or warning might infringe rights under Article 8 ECHR was not directly in issue, and the case, although giving some support to the Defendants' position, does not, in my view, definitively resolve the contested issue in this claim.
However, for the reasons already given, I believe that I should follow what I interpret to be the majority view of the Supreme Court in L that the 1997 Act, insofar as it requires disclosure of all convictions and cautions, is compatible with Article 8 ECHR. Mr Southey QC forcefully submitted that, even if that were the majority view, the approach upon which it must be predicated cannot now stand with the unanimous decision of the Supreme Court in R(F) v Justice Secretary [2010] UKSC 17 ; [2011] 1 AC 331 (" F "). In F the Claimants had automatically become subject for an indefinite period to the notification requirements in sections 82 to 86 of the Sexual Offences Act 2003. By those requirements an offender had to inform the police of certain personal details and by the Sexual Offences Act 2003 (Travel Notification Requirements) Regulations 2004 an offender had to inform police of the details of foreign travel plans. The Claimants sought a declaration of incompatibility on that grounds that the absence of any mechanism for review of the notification requirements in the 2003 Act was a disproportionate interference with their rights under Article 8 ECHR.
Lord Phillips of Worth Matravers PSC, with whom Lord Hope of Craighead DPSC, Baroness Hale of Richmond and Lord Clarke of Stone-cum-Ebony JJSC agreed, stated the effect of the relevant Strasbourg jurisprudence, as follows:
At paragraph 51 Lord Phillips stated the central issue in the appeal:
As to the central issue, Lord Phillips concluded:
Mr Southey QC submits that the position in the present case is no different from that in F . It is accepted that disclosure under the 1997 Act serves to promote an important goal of public policy, namely, safeguarding children and vulnerable adults. Disclosure interferes with Article 8 rights, for the reasons stated in L . Such disclosure would be proportionate in a particular case only if it were relevant to the decision for which disclosure was required. In a particular case disclosure of, for example, a warning given for a relatively trivial offence committed many years ago by a child who has not subsequently re-offended would be likely to have no, or at least no more than negligible, relevance to the decision whether, say, that person (now an adult) could, even on the highest standards of protection, be safely employed to work with children. However, under the 1997 Act there is no mechanism at all for reviewing whether the information relating to a warning given in the circumstances outlined continues to serve any useful purpose in terms of the relevant public policy. Disclosure of such information would, therefore, simply interfere with Article 8 rights without advancing any legitimate public interest. In the absence of any review mechanism that would enable information, no longer relevant, to be withheld, and that would prevent the unjustified interference with Article 8 rights, the legislation cannot be proportionate.
In my view, this is a very powerful argument, and it gains support from relatively recent developments in the public sphere regarding what should constitute appropriate disclosure under the 1997 Act.
On 22 October 2010, the SSHD established the Criminal Records Review. The terms of reference were:
The Review has been conducted by Mrs Sunita Mason, the Independent Adviser for Criminality Information Management. Her report on the first phase of the review was published on 11 February 2011.
On pages 25 and 29 of her report Mrs Mason highlights the detrimental impact that disclosure may have: an employer on receipt of a disclosure certificate that contained criminality information may use it as a reason to de-select – indeed some employers may believe that a "clean" certificate is a sine qua non of a job offer. In a tight labour market such de-selection may be convenient, but it may be very unfair to the applicant and an inefficient means of discriminating between candidates.
Mrs Mason went on:
Mrs Mason stated that "she was keen to ensure that the Government implements 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." She refers to the setting up, on her initiative, of the Independent Advisory Panel for the Disclosure of Criminal Records, which has considered and recently reported on a mechanism to filter old and minor convictions from being disclosed through criminal record checks. Mrs Mason's fifth recommendation is for a filter system, which would be both balanced and easily understood by all interested parties.
This recommendation echoes Mrs Mason's earlier review, dated March 2010 (" A Balanced Approach ") on retaining and disclosing criminal records (see paragraphs 19, 20, 82, 88-100 of that review).
It appears to me that the views of the Government's own independent expert on this matter are not out of line with the general practice of the criminal courts. For the purposes of the bad character provisions of the Criminal Justice Act 2003 experienced criminal judges regularly "filter" ancient convictions as having no relevance to, or as having potentially a disproportionately prejudicial effect on, the resolution of any relevant issue in the trial. Indeed, the prosecution often does its own "sifting" and makes no application for the admission of the material. This is particularly so if the offence in question was committed when the accused was a child. In relation to the "dangerousness" provisions of the 2003 Act (when ex hypothesi the defendant has committed a serious specified sexual or violent offence), the Court of Appeal has repeatedly stressed that children develop and mature, and that it is important to be particularly careful and cautious in seeking in the case of children to make adverse predictions of future behaviour.
The Government has Mrs Mason's recommendation under consideration. Mr John Woodcock, the Head of Criminal Records Policy within the Safeguarding and Public Protection Unit within the Home Office, in his witness statement relied on in this claim states the practical difficulties of a "filter" system:
In some contexts an individualised approach may be wholly impracticable (see, for example, Security Industry Authority v Stewart and another [2007] EWHC 2338 (Admin) , [2009] ICR 233 , where Laws LJ at paragraphs 40-41 explained why an "individualised" approach was impossible in the relevant context). However, while noting the points made by Mr Woodcock, I am not persuaded that a "filter" system could not be devised that would at least remove, after an appropriate period, a caution given to a child under the age of 14 for a non-violent, non-sexual offence, where that child had subsequently committed no crimes, in circumstances where the caution could have no, or no more than negligible, bearing on his or her suitability for one of the protected categories of employment. The disclosure of the caution in such a case may well have a detrimental impact on the subject of the disclosure, within the scope of the protection of Article 8, as explained in L , which is not justified by the purpose for which disclosure is required. There may be real controversy about the categories of convictions that could be properly "filtered", and about the appropriate criteria that needed to be satisfied. However, such difficulties do not seem to me to justify the present position where there is no longer any "filter" arrangements at all, and there appear to be some cases at least, especially cautions administered to children, where disclosure would serve no useful purpose in promoting the relevant public policy.
In this context it is perhaps well to remember that the age of criminal responsibility in England, although established by Parliament, is not without controversy, particularly viewed through a Strasbourg prism. Although there is no international agreement on what the age of criminal responsibility should be, the UN Committee on the Rights of the Child (2002) and the European Committee on Social Rights (2005) have urged the reform of English law. The age in Scotland has recently been increased to 12 (Justice and Licensing (Scotland) Act 2010, section 52). (For critical literature on the present position, see Smith and Hogan's Criminal Law, 13 th edition, ed. David Ormerod, at 340-341). The net effect of the disclosure provisions is that a caution for a criminal offence committed at an age when many countries (including Scotland) would not even recognise criminal responsibility is disclosable throughout the lifetime of the person concerned.
I have no doubt that the disclosure provisions of the 1997 Act broadly strike a fair balance between the competing interests described by Lord Neuberger in L . It is the application of these provisions in particular cases that gives me concern. I can understand that a system which admits of no exceptions for the disclosure of convictions and cautions removes, or should remove, entirely the risk that information that might be relevant is not available to the decision maker, who may as a result take a decision which, in the interests of safety, would not otherwise have been taken. But a system that allows no exceptions imposes a very heavy cost in terms of effect on the fundamental rights protected by Article 8 ECHR. I am not persuaded that the marginal benefit that a system which admits no exceptions brings to, admittedly important, competing interests is justified as a matter of proportionality when the serious detrimental effects of such a system, particularly on child offenders, are weighed in the balance. A system that permitted exceptions would probably be more prone to error, but only marginally so if the criteria for review were themselves conservative and risk averse. The consequential improvement to the protection of Article 8 rights on the other hand, would be likely to be substantial. There is also a further possible cost of the present system. If the child, and his or her parents, understand, as they should, that the acceptance of a caution creates a criminal record that will always remain with the child, and potentially affect future prospects, there may be a perverse incentive to contest the charge, a result that is also in tension with the current public policy of exposing children to the criminal justice system only if necessary. On the other hand, a system that allowed a caution to be expunged after an appropriate period of non-offending might be thought to create an efficient and sensible incentive to avoid such re-offending.
However, for the reasons already given, I feel that in the light of the authority of L it is not open to me to reach the above conclusion and to declare any relevant provisions of the 1997 Act to be incompatible with Article 8 ECHR.
The Challenge to the Order
Under the Rehabilitation of Offenders Act 1974 ("ROA"), a warning (and a caution in the case of an adult) is deemed to be spent as soon as it is administered and thereafter the person who has received it should be treated as if he had never committed the offence in question and need not make reference to the warning in answering any question which might otherwise require its disclosure (paragraph 3 of Sch. 2 ROA). Paragraphs 3(3)-(5) provide:
These provisions of the ROA seek to ensure that an individual is not prejudiced by having received a warning, or not having disclosed that he has received a warning, including when applying for employment.
However, these provisions are subject to the Order, which removes the protection otherwise given by the ROA in specified circumstances. In particular, art. 3 of the Order excludes the effect of paragraph 3(3) of Sch. 2 ROA in the context of questions asked to assess suitability for employment in the various positions listed in the provisions of Sch. 1 to the Order; and art. 4 excludes the effect of paragraph 3(5) of Sch. 2 ROA in relation to the offices, professions, occupations and employments listed in Sch. 1.
For example, in the case of a person applying to be a teacher, any question asked to him about his past conduct is to be taken at face value and, if appropriately framed, is to be regarded as relating to cautions, warnings and reprimands (which are spent under the ROA) and ancillary circumstances. A prospective employer may act upon a truthful answer to such a question which discloses details of cautions etc. An applicant may be subjected to legal liability as a result of failing to give a truthful answer to the question. Failure to give a truthful answer and to disclose a past caution, warning or reprimand may be a proper ground for rejecting an application, or disciplining or dismissing him if employment has been offered and accepted.
There is plainly a close correspondence between the Order and the disclosure provisions that have already been considered. It is a pre-condition for obtaining an ECRC under section 113B of the Act that it is required for the purposes of an exempted question (as defined by the Order): see section 113B(2)(b).
The correspondence is, however, not exact. Under section 113B(2)(b) the exempted question must be asked for a prescribed purpose. The various purposes are prescribed in reg. 5A of the Police Act 1997 (Criminal Records) Regulations 2002 (SI 2002/233). It is significantly narrower than the list of situations set out in the Order where exempted questions may be asked (although it does also include the purpose of assessing suitability to work with children). Furthermore, disclosure under the 1997 Act may be used only by registered persons and bodies, (see Section 120 and following of the 1997 Act and the Police Act 1997 (Registration) Regulations 2006 (SI 2006/750)). Many persons asking exempted questions cannot apply for an ECRC to check the answers because they are not registered persons or bodies. In certain situations, a person cannot be registered, for example, if they made fewer than 100 applications in the previous year (reg. 7(l)), if they have been disqualified from registration etc. Small employers may approach an umbrella registered body which is itself registered, and obtain an ECRC by that means.
Notwithstanding that the correspondence is not quite exact, it seems to me that the rationale for the disclosure provisions and for the Order is the same, namely, that those who intend to employ a person to work in certain sensitive employments, in particular, with children and vulnerable adults should know, among other information, whether the person in question has a criminal record and the nature of any such record. If, in furtherance of that public interest, the state is entitled to disclose to certain prospective employers all criminal convictions, cautions and warnings, it must follow that such employers may legitimately ask applicants about such convictions etc, expect them to answer truthfully and take appropriate action in response to the answers given and to any failure to answer truthfully. It would be odd indeed if a prospective employer could not (under the Order) ask about certain cautions and warnings, but could obtain disclosure of this information under the 1997 Act (on the basis that it was needed to evaluate the prospective employee's suitability). It could also give rise to undesirable confusion: a prospective employee could answer negatively if questioned about criminal convictions (including old cautions or warnings putatively now irrelevant under the Order), only to find that such convictions were disclosed to the employer under the 1997 Act and his honesty possibly brought into question. Furthermore, certain employers are bound by law to apply for an ECRC in respect of prospective employees. State schools and NHS employers are good examples: see, for example, regulation 123(3) of the School Staffing (England) Regulations 2009 (SI 2009 No. 2680). In that case the anomaly would be more acute: the state school would be obliged to obtain information under the 1997 Act, on the basis that it was essential for the relevant assessment, that could not be deployed under the Order for the purpose of making the assessment.
All parties to these proceedings accept that there is a close inter-relationship between the disclosure provisions of the 1997 Act and the Order. Mr Southey QC does not, for example, suggest that the Order is disproportionate because it permits certain employers to ask questions that in their case cannot be supported by an ECRC. The ROA falls within the responsibility of the Ministry of Justice. The Ministry has consulted on its reform: see Breaking the Cycle. Effective Punishment, Rehabilitation and Sentencing of Offenders (cm 7972, December 2010). The Ministry was, inter alia, "looking at how offenders with minor convictions a long time in their past, but who are subject to full disclose of their convictions, might be treated" (paragraph 118). On 3 February 2012, after the hearing of this claim, the Ministry announced planned reductions in respect of periods of rehabilitation. However, it appears from the terms of the Press Release that the legislative amendments to achieve the reductions will not change the position as regards disclosure in the excepted categories of sensitive employment, etc.
In these circumstances I do not believe that there is any real independent issue about the legality of the Order under Article 8 ECHR. The conclusion must be the same. However, I should perhaps add that the reverse argument does not necessarily apply. In other words, even if it were disproportionate under Article 8 ECHR for the state to disclose, say, a warning long ago given to a child for a minor criminal matter, it would not automatically be an infringement if the state permitted a private employer to enquire about all criminal convictions, to insist on truthful answers and to take appropriate action in response to the answers given. Mr Coppel forcefully submitted that there is no Strasbourg or domestic authority to the effect that a Convention state is required by Article 8 (or any other provision of the ECHR) to have a scheme (such as the ROA) for rehabilitation of offenders either generally, or by legislating in particular so as to permit untruthful answers to be given to questions asked by prospective employers. An attack on the Order as such pre-supposes that the state must take positive action to intervene in relations between private individuals (in the case of private employers) and between private individuals and state employers, in order to permit individuals to conceal information about their past, and prevent employers from refusing to employ them, or taking disciplinary action against them, on grounds of failing to give truthful answers to questions asked about previous cautions, warnings and reprimands.
The issue of positive obligations or state action is a difficult one. I have found the general discussion in Janis, Kay and Bradley , European Human Rights Law, Third Edition 2008 , at 389-403, which sets the issue in a wider international context, particularly helpful. Strasbourg has most recently considered the issue in Mosley v UK (2011) 53 EHRR 30 , where it was argued that the UK had a positive obligation to require the media to give advance notification of publication of private information. The Court stated:
If I had had to decide this issue – whether the Order as such was unlawful under Article 8 ECHR – I would not have been persuaded that the state had the positive obligation asserted by the Claimant. The factors enumerated in Mosley do not indicate that the present terms of the Order would be a suitable candidate for a novel positive obligation. The Order does not concern an important facet of personal identity, or an intimate aspect of private life. There does not appear to be any international convention that would require a state to exempt offenders from having to reveal information about crimes committed when they were children, and the UK's scheme for rehabilitation under the ROA does not seem obviously to lag behind similar arrangements in other convention states. That conclusion is supported by domestic case law: see R (Pearson) v DVLA [2002] EWHC 2482 Admin at paragraph 15; KJO v XIM [2011] EWHC 1768 QB , at paragraph 19.
In conclusion, I feel constrained by binding authority to conclude that the challenged provisions of the 1997 Act are compatible with Article 8 ECHR, although if I had not been so constrained I would have found that the present system that allows no exceptions and provides no mechanism for review was disproportionate and not compatible with Article 8. It also follows from that conclusion that the provisions of the Order are also lawful. In these circumstances, I dismiss this application for judicial review, albeit with some reluctance. The issue is one of general importance that fully deserves to be considered by a higher court, and I had already indicated that I would give permission to the unsuccessful party to appeal to the Court of Appeal. In the light of that indication the terms of the consequential order in the claim may be capable of agreement between the parties without the need for further attendance. I am most grateful to all counsel for their clear and helpful written and oral submissions.