R (on the application of P) v Secretary of State for the Home Department: Creating a criminal record scheme with bright-line rules that respect the right to privacy.

Abstract

This comment considers the Court of Appeal’s May 2017 ruling in R (on the application of P) v Secretary of State for the Home Department . [1] As commentators and campaigners predicted, the Court ruled that Parliament’s 2013 amendments to the criminal record scheme did not go far enough. The scheme remains “arbitrary” and in breach of Article 8 of the European Convention on Human Rights. This finding is significant in itself. However, there is also a general human rights point of importance relating to the use of bright-line rules in schemes that retain and disclose personal data. These types of rules are preferred by states because they are easier and cheaper to administer than a more individualised approach. Much of the Court of Appeal’s analysis of the bright-line rules fell under the consideration of whether the scheme was “in accordance with the law.” This is notable because domestic courts have traditionally looked at the effect of these rules under the test of necessity. The expanded understanding of “in accordance with the law” could mean that in future domestic courts are less deferential to Parliament when it comes to the state’s use of bright-line rules in the handling of personal date – though it appears that the test will only be applied when the interference with the right to privacy is deemed significant. [1] [2017] EWCA Civ 321, [2017] 2 Cr App R 12.