Gallagher for Judicial Review (NI): SC 30 Jan 2019

Each appellant complained of the disclosure by the respondent of very old and minor offences to potential employers, destroying prospects of finding work. Two statutory schemes were challenged, raising two separate questions, namely whether any interference with Article 8 ECHR is: (1) ‘in accordance with the law’ (‘the legality test’) and (2) ‘necessary in a democratic society’ (‘the proportionality test’).
Held: The appeals failed (save for W). Orders in the CA were varied to accord with the proportionality test. Lord Kerr, dissenting, disagreed with the majority’s approach to the legality test and its application of the proportionality test. Lord Kerr would have dismissed the appeals (including in W’s case) and affirmed the declarations of incompatibility made by the EWCA and NICA.
Article 8 ECHR was engaged and two conditions thus applied, namely satisfaction of: (1) the legality test and (2) the proportionality test. The legality test requires, at least, accessibility and foreseeability.
Lord Sumption considered that the legality test, whether under Article 8 ECHR or otherwise, did not involve questions of degree. For him, accessibility required that it must be possible to discover what the provisions of a legal measure are, while foreseeability requires that a measure does not confer an unconstrained discretion. However, if the issue is how much discretion is too much (i.e. a question of degree), only the proportionality test can be used for review.

Lady Hale, President,
Lord Kerr,
Lord Sumption,
Lord Carnwath,
Lord Hughes
[2019] UKSC 3, [2019] 3 All ER 823, [2019] 2 WLR 509, [2019] NI 123, [2019] HRLR 6, [2020] AC 185, (2019) 22 CCL Rep 229, UKSC 2016/0195
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 12018 Jun 19 am video, SC 2018 Jun 19 pm Video, SC 2018 Jun 20 am Video, SC 2018 Jun 20 pm Video, SC 2018 Jun 21 am Video
European Convention on Human Rights 8, Rehabilitation of Offenders Act 1974 4(2) 4(3), Rehabilitation of Offenders (Northern Ireland) Order 1978, Rehabilitation of Offenders (Exceptions)
Order (Northern Ireland) (SR(NI) 1979/195)
, Police Act 1997 113A 113B, Police Act 1997 (Criminal Record
Certificates: Relevant Matters) (Amendment) (Northern Ireland) Order (SI 2014/100)
, Rehabilitation Act 1974 (Exceptions) (Amendment) Order (Northern Ireland) Order (SI 2014/27).
Northern Ireland
CitedThe Sunday Times v The United Kingdom (No 1) ECHR 6-Nov-1980
The Court had held, inter alia, that there had been a breach of Article 10 by reason of an injunction granted against Times Newspapers Limited in accordance with the English law of contempt of court but no breach of Article 14 (art. 14).
CitedSilver And Others v The United Kingdom ECHR 25-Mar-1983
There had been interference with prisoners’ letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were . .
CitedCatt v The United Kingdom ECHR 24-Jan-2019
ECHR Judgment : Article 8 – Right to respect for private and family life : First Section . .
CitedMalone v The United Kingdom ECHR 2-Aug-1984
COURT (PLENARY) The complainant asserted that his telephone conversation had been tapped on the authority of a warrant signed by the Secretary of State, but that there was no system to supervise such warrants, and that it was not therefore in . .
Appeal fromP, Regina (on The Application of) The Secretary of State for The Home Department and Another CA 3-May-2017
Challenge to disclosure by police of spent convictions. . .
Appeal fromGallagher, Re Judicial Review CANI 12-Oct-2016
. .
CitedT and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
CitedHuvig v France ECHR 24-Apr-1990
The court recognised the value, in the context of telephone tapping, of regulatory control, including supervision by the courts if need be, even though it was found to be lacking in this case in the absence of legislation or case law. . .
CitedEvans v United Kingdom ECHR 10-Apr-2007
The claimant said that the English law on assisted conception infringed her right to family life. She had began treatment with her partner, and was given a cycle of in-vitro fertilisation before her cancerous condition required removal of her . .
CitedSegerstedt-Wiberg and Others v Sweden ECHR 6-Jun-2006
The Court, having regard to the scope of the notion of ‘private life’ as interpreted in its case-law . . finds that the information about the applicants that was stored on the Secret Police register and was released to them clearly constituted data . .
CitedKruslin v France ECHR 24-Apr-1990
Hudoc The claimant complained of the interception of her telephone calls.
Held: The condition of legality relates to the characteristics of the legislation itself, and not just to its application in the . .
CitedAmann v Switzerland ECHR 16-Feb-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 with regard to interception of telephone call; Violation of Art. 8 with regard to creation and storing of information card; Preliminary objection . .
CitedS v The United Kingdom; Marper v The United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The court commented that ‘in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the court will have due regard to the specific context in which the . .
CitedRotaru v Romania ECHR 4-May-2000
Grand Chamber – The applicant, a lawyer, complained of a violation of his right to respect for his private life on account of the use against him by the Romanian Intelligence Service of a file which contained information about his conviction for . .
CitedGillan, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another HL 8-Mar-2006
The defendants said that the stop and search powers granted under the 2000 Act were too wide, and infringed their human rights. Each had been stopped when innocently attending demonstrations in London, and had been effectively detained for about . .
CitedLiberty And Others v United Kingdom ECHR 1-Jul-2008
Liberty complained that the interception of their communications under the 1985 Act between 1990 and 1997 had infringed their article 8 rights, since the Act was insufficiently clear.
Held: The infringements were established. The mere . .
CitedThe Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
CitedCatt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
CitedKvasnica v Slovakia ECHR 9-Jun-2009
. .
CitedDragojevic v Croatia ECHR 15-Jan-2015
. .
CitedAnimal Defenders International v The United Kingdom ECHR 22-Apr-2013
ECHR (Grand Chamber) Article 10-1
Freedom of expression
Refusal of permission for non-governmental organisation to place television advert owing to statutory prohibition of political advertising: no . .
CitedPurdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
CitedMM v The United Kingdom ECHR 13-Nov-2012
ECHR The applicant complained about the retention and disclosure in the context of a criminal record check of data concerning a caution she received from the police. he applicant, who lived in Northern Ireland, . .
CitedGillan and Quinton v The United Kingdom ECHR 12-Jan-2010
The claimants had been stopped by the police using powers in the 2000 Act. They were going to a demonstration outside an arms convention. There was no reason given for any suspicion that the searches were needed.
Held: The powers given to the . .
CitedL, Regina (On the Application of) v Commissioner of Police of the Metropolis SC 29-Oct-2009
Rebalancing of Enhanced Disclosure Requirements
The Court was asked as to the practice of supplying enhanced criminal record certificates under the 1997 Act. It was said that the release of reports of suspicions was a disproportionate interference in the claimants article 8 rights to a private . .
CitedTigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
CitedR, Regina (on the Application of) v Durham Constabulary and Another HL 17-Mar-2005
The appellant, a boy aged 15, had been warned as to admitted indecent assaults on girls. He complained that it had not been explained to him that the result would be that his name would be placed on the sex offenders register. The Chief Constable . .
CitedKopp v Switzerland ECHR 25-Mar-1998
WCHR Switzerland – monitoring of a law firm’s telephone lines on orders of the Federal Public Prosecutor (sections 66(1 bis) and 77 of the Federal Criminal Procedure Act – ‘the FCPA’)
A lawyer’s home . .
CitedChief Constable of Humberside Police and Others v The Information Commissioner and Another CA 19-Oct-2009
Complaints had been made that the police were not deleting from their criminal records very old records of minor convictions. The police appealed against a finding that they should do so under Data Protection Principles. The Police had used a policy . .
CitedP and A, Regina (on The Application of) v Secretary of State for Justice and Others Admn 22-Jan-2016
The claimants challenged the compliance with their human rights of the system reuiring full disclosure of old convictions on applications for employment. . .
CitedT, Regina (on The Application of) v Chief Constable of Greater Manchester and Others CA 29-Jan-2013
Three claimants appealed against refusal of declarations that the response of the police to requests for Criminal Records Bureau enhanced checks, were a disproportionate interference in their right to private and family life, and in particular that . .
CitedF and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Apr-2010
The defendants had been convicted and sentenced for offences which under the 2003 Act would mean that they stayed permanently on the Sex Offenders’ register without possibility of a review. The Secretary of State appealed aganst a finding that the . .

Lists of cited by and citing cases may be incomplete.

Police, Information, Human Rights

Updated: 09 January 2022; Ref: scu.633291