The Supreme Court Judgment in R v Chief Constable of Greater Manchester and the affect on Professional Regulators

On 18 June 2014, the Supreme Court provided its decision in the case of R(T) v Chief Constable of Greater Manchester[1]. In the light of this judgment, it is arguable that professional regulators can no longer impose an obligation on their registrants to disclose criminal cautions, regardless of the nature and date of the offence.

In R(T), the appellants challenged the Court of Appeal decision that the Police Act 1997, s.113A and s.113B, and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (the 1975 Order) were incompatible with article 8 of the European Convention of Human Rights 1950 (art.8). The judgment upheld the Court of Appeal’s decision in part, but overruled the declaration that the 1975 Order was ultra vires.

This article considers the impact of the Supreme Court decision on professional regulators particularly with regard to their vetting procedures and the requirements they can impose.

The Effect Of The Supreme Court Judgement On Professional Regulators

The Rehabilitation of Offenders Act 1974 (the 1974 Act) removes the common law obligation imposed on an employee to disclose a spent caution or conviction as a result of questions asked by an employer. The 1974 Act renders such questions impermissible and extends to requests for information which might restrict an individual’s ability to trade or practise, such as issuing a licence or the inclusion on a commercial register or list. No action can be taken by an employer as a result of a failure by an employee to declare a spent conviction. Information can be sought in relation to unspent convictions or cautions. However, the obligation on an employee to reply does not extend to spent matters.

The 1974 Act, sch.2, paras 3(4) and (5), relates specifically to cautions:

3 – (4) Any obligation imposed on any person by any rule of law or by the provisions of any agreement or arrangement to disclose any matters to any other person shall not extend to requiring him to disclose a spent caution or any ancillary circumstances (whether the caution is his own or another’s).

(5) A caution which has become spent or any ancillary circumstances, or any failure to disclose such a caution or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment.

A power is conferred upon the Secretary of State, under ss.4(4) and 7(4) of the 1974 Act, to make exceptions, through secondary legislation, to the general prohibition contained within the 1974 Act. The 1975 Order made such exceptions and allows regulators to take action if a registrant fails to disclose any previous convictions or cautions, spent or otherwise (See: the 1975 Order, art.4(1)(a)):

4 – (1) Subject to paragraph (2), neither paragraph (b) of section 4(3) of, nor paragraph 3(5) of Schedule 2 to, the Act shall apply in relation to:

(a) The dismissal or exclusion of any person from any profession specified in Part I of Schedule 1 to this Order [registrants of healthcare regulators];

The Court of Appeal decision to declare the 1975 Order ultra vires removed the exemption for professional regulators. Further than merely preventing dismissal or exclusion in the future, the effect of the Court of Appeal judgment was to declare that the 1975 Order had always been in breach of art.8, and that since 2 October 2000, when the Human Rights Act 1998, s.1, came into force, all actions taken by regulators in reliance of disclosures made pursuant to it had been unlawful.

The Supreme Court held that there was a clear public interest in ensuring the suitability of applicants for certain positions, but found in the case of R(T) that the 1975 Order failed the requirement of necessity and was therefore in breach of the protection contained within art.8. The method by which the 1975 Order was brought into law was, however, defined by the Supreme Court as laying a proposal of legislation” before Parliament, was not therefore subject to remedial action under s.8 of the 1998 Act, and could not be declared ultra vires. The decision in R(T) reinstated the exemptions contained within the 1975 Order.

The 2013 Amendments

Subsequent to the Court of Appeal decision, the Secretary of State issued an amendment to the 1975 Order, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (the 2013 Amendments), in an attempt to bring the requirement to disclose within the protection of art.8, and to clarify the extent of disclosure required when an employer asks questions regarding convictions and cautions.

The 2013 Amendments introduced the concept of ‘protected cautions’ and ‘protected convictions’, the effect of which was to provide an additional rehabilitation period, after which a caution or conviction would not have to be disclosed to specified employers, for example healthcare regulators. A caution becomes protected if received before the age of 18 years old and two years or more have passed, or if over 18 and six years have passed. The exception for regulators, contained within article 4 of the 1975 Order, now no longer applies to protected cautions (See: the 1975 Order, art.4(2) as amended by the 2013 Amendments, art 8(e)):

4 – (2) Paragraph (1) does not apply in relation to a protected caution or a protected conviction.

The Supreme Court acknowledged the 2013 Amendments within their judgment in R(T) but refused to consider their impact when it declared the 1975 Order not to be ultra vires. In practical terms, the 2013 Amendments mean that any question from a professional regulator extends only so far that a caution or conviction is not protected. A potential employee, registrant, or licensee, would be required to disclose the caution, or conviction as long as the period for protection had not passed.

The Position For Regulators – Imposing Lawful Obligations?

The decision in R(T) reinstated the exemptions contained within the 1975 Order as modified by the 2013 Amendments. However, since 10 March 2014, when the rehabilitation period for cautions was extinguished, it would appear that any obligations imposed on existing registrants to disclose a caution, for example in the GMC Good Medical Practice, was prohibited by the 1974 Act.

Regulators issue guidance, which impose requirements on their registrants to disclose criminal cautions. The form of the guidance varies but generally imposes a requirement of disclosure regardless of the offence or jurisdiction (See: GMC Good Medical Practice, para 75.a.):

75. You must tell us without delay if, anywhere in the world:

(a) You have accepted a caution from the police or been criticised by an official inquiry;

The GDC imposes a similar obligation (See: GDC Standards for the Dental Team, 9.3):

You must:

9.3 Inform the GDC if you are subject to criminal proceedings or a regulatory finding is made against you anywhere in the world.

This is not restricted to the field of healthcare professionals with the BSB Handbook containing a similar provision for barristers within England and Wales (See: BSB Handbook part 2, Code of Conduct, rC65.2):

You must report promptly to the Bar Standards Board if:

You are convicted of, or accept a caution, for any criminal offence, in any jurisdiction, other than a minor criminal offence;

The Supreme Court identified that a caution was spent upon receipt (See: R(T) at [76]):

‘They [the relevant provisions for cautions in the 1974 Act] are broadly analogous in structure to those applicable to convictions, subject to the qualification that a caution (other than a conditional caution) becomes spent at the time it is given.’

Subject therefore to an exemption within the 1975 Order a registrant would not be required to declare a caution, regardless of when it was accepted, as it would instantly, upon receipt, become part of a person’s private life and subject to the protection of art.8.

The relevant provisions of the 1975 Order do not explicitly remove the prohibition in the 1974 Act relating to the imposition of obligations to disclose. It is conspicuous that the 2013 Amendments do not seek to address this lacuna. The only exception, within the 1975 Order, is for those seeking election as a police or crime commissioner, who have an obligation to disclose a previous conviction, not a caution, regardless of whether it is spent (See: The 1975 Order, art.4A(3)).

Reading the relevant provisions, the correct interpretation of the 1975 Order would be that a professional regulator is permitted to undertake disciplinary proceedings relating to a caution which is spent and not protected, but the imposition of an obligation to declare a caution extends only to those which are unspent. The requirement to disclose spent cautions, which includes all simple cautions, is impermissible. Any obligations imposed by the relevant provisions of the GMC Good Medical Practice, GDC Standards for the Dental Team or BSB Handbook would be negated by the 1974 Act.

Regulators must be vigilant when drafting grounds for disciplinary action. The receipt of a caution for a dishonesty offence would perhaps be a permissible reason for suspension of a person’s licence or erasure from a register. However, imposing a sanction for failing to disclose a caution, regardless of the offence, might not survive the scrutiny of the High Court. As is clear, the legislation allows regulators to ask otherwise impermissible questions and a registrant who answers untruthfully could be subject to a disciplinary hearing. Those representing individuals subject to disciplinary proceedings should advise carefully that failing to tell a regulator about a caution is arguably permissible but lying to a regulator would almost certainly result in sanction.