Tuesday, November 03, 2009

UK Supreme Court first ruling: criminal records checks often go too far

In one of their first ever judgments, in R (on the application of L) (FC) (Appellant) v Commissioner of the Police of the Metropolis) (Respondent), the judges at the UK's new Supreme Court have ruled that criminal records checks often go too far.  The Court's press release summarises the judgement:
"The Supreme Court holds that, when determining whether to disclose non-criminal related
information retained in police records in connection with an application to work with
vulnerable persons, the police must give due weight to the applicant’s right to respect for her
private life. However, the facts narrated were true, the allegation was directly relevant to her
employment and the school was entitled to be apprised of the information.
Therefore, while the consequences for the appellant’s private life are regrettable, disclosure
could not in this case be said to be disproportionate to the public interest in protecting
vulnerable people [para [48], [49], [58] and [86]]. The appeal must be dismissed...
Amongst the reasons for the decision the summary lists:
 Those who apply for positions that require an ECRC cannot be regarded as consenting to their
privacy rights being violated. Consent is predicated on the basis that the right to respect for
private life will be respected [para [43]]. Otherwise, legislation could easily circumvent HRA
rights by effectively curtailing access to benefits unless people ‘consent’ to invasions of their
rights [para [73]].
 The police’s historic approach towards balancing the public interest in protecting vulnerable
persons and respecting Article 8 rights was flawed, as they applied a general presumption that
in cases of conflict the public interest should generally prevail [para [44]]. Article 8 requires
that neither consideration be afforded precedence over the other – each interest should be
given careful consideration in assessing the proportionality of the proposed disclosure [paras
[45], [63] and [85]]."
The Telegraph doesn't miss the opportunity to report on a dent in the state's big brother apparatus.

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