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Legal case

The use and abuse of reprimands

The divisional court ruled that the actions of the police were a breach of Article 8 of the ECHR, the right to privacy

R (on the application of RD) v (1) Secretary of State of Justice (2) Secretary of State of the Home (3) National Police Chiefs' Council [2020]

Executive summary

An applicant for a job as a police constable had to disclose a spent reprimand that they had received as a child. This was not a breach of article 8 of the ECHR. It was in accordance with the law, proportionate and necessary for the prevention of crime and protection of the rights and freedoms of others. There should not, however, be a blanket ban on recruits who had received a reprimand.

Background

A 13-year-old girl, RD, together with three of her friends, stole a sarong worth £20 from Primark. She was arrested and admitted the offence. The police decided not to prosecute and instead administered a reprimand. She later completed a degree in criminology and decided to pursue a career in the police service. She applied to South Wales Police for a job as a service support officer, with a view to gaining experience in order to apply to become a police constable. She was asked to disclose whether she has any convictions or cautions and disclosed the reprimand, which was eight years old. She had had no other contact with the criminal justice system apart from the reprimand and was of good character. Her application was rejected because of the reprimand and she was told that it was unlikely that she would be successful in any future recruitment process for the police service. The claimant suffered distress and mental health issues as a result.

The divisional court ruled that the actions of the police were a breach of Article 8 of the ECHR, the right to privacy. She should not have been asked about the reprimand and was effectively barred from pursuing a career on the police service. The court granted a declaration that the Rehabilitation of Offenders 1974 (Exceptions) Order 1975 (which required disclosure of reprimands by applicants to the police service) was incompatible with Article 8. The Home Secretary and NPCC appealed to the Court of Appeal.

Discussion

Article 8 allows an interference with an individual’s right to privacy where certain requirements are satisfied. The first question was whether the requirement to produce the reprimand was in accordance with the law. The court found that it was because provision for such disclosure was made by the Rehabilitation of Offenders 1974 (Exceptions) Order 1975.

The next question was whether the disclosure was proportionate and necessary for the prevention of crime and for the protection of the rights and freedoms of others. The court ruled that it was. The disclosure was necessary for the maintenance of police integrity and public confidence. The police also enjoyed a margin of judgement and the court should not interfere with the reasonable exercise of that judgement.

The court therefore ruled that the requirement for disclosure of the reprimand was lawful. They also made clear that there should not be a blanket ban on recruiting applicants with a reprimand. This would have a particularly severe impact on young people from BAME backgrounds who received a disproportionate number of reprimands. They were highly critical of the actions of the South Wales Police, observed that the applicant was a good candidate and that rejection for a reprimand for a minor offence received at the age of 13 was likely to be unlawful.

Comment

The main issue in this case was whether it was lawful to request disclosure of the reprimand.  The court said that it was and the following points arise: - (a) Article 8 is a qualified right and there may be grounds for lawfully infringing a person’s right to privacy; (b) The aim of protecting police integrity and public confidence was a legitimate reason for such interference; and c) The police enjoyed a margin of judgement.

The court did not rule on whether the rejection of the candidate was lawful but made their views clear. Any blanket policy of rejection on grounds of reprimands should not be entertained and each case should be judged on its merits.

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