Gallagher, Re Judicial Review [2016] NICA 42 (12 October 2016)

Gallagher, Re Judicial Review [2016] NICA 42 (12 October 2016)

The statutory provisions mandating disclosure of all convictions where there is more than one, without regard to the nature, age, or relevance of the offences and without any mechanism for independent review, are not in accordance with the law and are disproportionate, thus incompatible with Article 8 ECHR. The requirement to self-disclose more than one conviction similarly fails the necessity test under Article 8(2).

Citation
[2016] NICA 42
Parties
Applicant/respondent: Lorraine Gallagher; Respondent/appellant: Department of Justice
Jurisdiction
Northern Ireland
Judgment Date
12 October 2016
Procedural Posture
Judicial Review / Appeal From High Court to Court of Appeal
Outcome
Appeal dismissed; High Court decision affirmed
Legal Topics
Disclosure of Criminal Records, Article 8 ECHR (right to Private Life), Proportionality, Legality of Statutory Schemes, Rehabilitation of Offenders, Self Disclosure Requirements
Human Rights Law Criminal Law Employment Law Administrative Law Disclosure of Criminal Records Article 8 ECHR (right to Private Life) Proportionality Legality of Statutory Schemes +2 more

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Parties

Lorraine Gallagher

Applicant/respondent

Department of Justice

Respondent/appellant

Procedural Posture

Judicial Review / Appeal From High Court to Court of Appeal

Legal Issues

  1. 1 Whether the statutory requirement for disclosure of all convictions where there is more than one, regardless of age or subject matter, is lawful under Article 8 ECHR
  2. 2 Whether the amended statutory schemes provide adequate safeguards against arbitrary interference with private life
  3. 3 Whether the requirement to self-disclose more than one conviction is proportionate and necessary in a democratic society

Ratio Decidendi

The statutory provisions mandating disclosure of all convictions where there is more than one, without regard to the nature, age, or relevance of the offences and without any mechanism for independent review, are not in accordance with the law and are disproportionate, thus incompatible with Article 8 ECHR. The requirement to self-disclose more than one conviction similarly fails the necessity test under Article 8(2).

Court Disposition

Appeal dismissed; High Court decision affirmed

Orders

  • Declaration that the relevant statutory provisions are incompatible with Article 8 ECHR insofar as they require disclosure of all convictions where there is more than one, without adequate safeguards or review.