QSA v National Police Chiefs' Council

JurisdictionEngland & Wales
JudgeLord Justice Bean,Mr Justice Garnham
Judgment Date12 February 2021
Neutral Citation[2021] EWHC 272 (Admin)
Date12 February 2021
Docket NumberCase No: CO/986/2017
CourtQueen's Bench Division (Administrative Court)

The Queen on the application of

Between:
(1) QSA
(2) Fiona Broadfoot
(3) ARB
Claimants
and
(1) National Police Chiefs' Council
(2) Secretary of State for the Home Department
Defendants

and

College of Policing
Interested Party

[2021] EWHC 272 (Admin)

Before:

Lord Justice Bean

and

Mr Justice Garnham

Case No: CO/986/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Karon Monaghan QC and Jude Bunting (instructed by Birnberg Peirce) for the Claimants

Jason Beer QC and Robert Talalay (instructed by Directorate of Legal Services, Metropolitan Police Service) for the First Defendant

Kate Gallafent QC and Christopher Knight (instructed by Government Legal Department) for the Second Defendant

Hearing dates: 19–20 January 2021

Approved Judgment

Mr Justice Garnham

Lord Justice Bean and

Introduction

This is the judgment of the court to which we have both contributed.

1

The three Claimants, QSA, Ms Fiona Broadfoot and ARB, were each convicted in the 1980s and 1990s of offences of loitering in a street or public place for the purposes of prostitution. Pursuant to a policy of the First Defendant, the National Police Chiefs' Council (“the NPCC”), those convictions are recorded on the Police National Computer (“the PNC”) and will remain so recorded until the Claimants are one hundred years old. Having ceased prostitution, the Claimants claim that that policy is unlawful, since it interferes with their rights under Article 8 ECHR, is not in accordance with the law, and is disproportionate.

2

Karon Monaghan QC, with Jude Bunting, represented the Claimants; Jason Beer QC with Robert Talalay the First Defendant and Kate Gallafent QC with Christopher Knight the Second Defendant. We are grateful to all counsel, and those who instruct them, for their assistance.

The facts

3

Each Claimant was in her teens when she was forced, or groomed, into prostitution. The First and Second Claimants suffered sexual abuse as children and were still children when they were forced by older men to have sex with others.

4

The First Claimant, QSA, who was born in 1973, was convicted of loitering in a street or public place for the purposes of prostitution contrary to s. 1 Street Offences Act 1959 (“the s. 1 offence”) some 57 times between 1990 and 1998, when she “exited” prostitution. She is the subject of an anonymity order. The Second Claimant, Ms Broadfoot, who was born in 1968, was convicted of the s. 1 offence some 39 times between January and November 1986 and further times thereafter until 1995, when she exited prostitution. The Third Claimant was convicted of the s. 1 offence some seven times between 1990 and 1992. She exited prostitution in the early 1990s. She too is the subject of an anonymity order.

5

The First Claimant lives in fear of the abuse she suffered being disclosed to others. She says she feels unable to move on while records of her convictions remain recorded. The Second and Third Claimants feel degraded and angry at the fact that their convictions will be recorded until the hundredth anniversary of their respective dates of birth. Both have failed to progress in their chosen professional fields (social work and health and social care respectively) because, they say, of the records of their convictions.

6

None of the three Claimants has been convicted of any offence for over 20 years.

7

The Claimants made attempts to have their records deleted from the PNC. On 6 March 2020, a request was made to the First Defendant to delete the records relating to these offences in the case of ARB. On 11 March 2020, the same request was made in relation to QSA and Fiona Broadfoot. These requests were refused by the First Defendant on 9 March 2020 and 12 March 2020, respectively.

The procedural history

8

On 23 February 2017, the Claimants issued judicial review proceedings against the Second Defendant advancing seven grounds of claim. Permission was granted by William Davis J to proceed with three grounds.

9

On 17 and 18 January 2018, a Divisional Court (Holroyde LJ and Nicola Davies J (as she then was)) heard argument on the three grounds in respect of which permission had been granted and three other grounds in respect of which the application for permission was renewed. The grounds can, in summary, be grouped into three challenges.

i) First, the Claimants challenged the “multiple convictions rule”. According to this rule, which derived from s. 113A(3) and (6)(b) and 113B(3) and (9)(b) of the Police Act 1997, if a person has multiple convictions of any sort, all of those person's convictions, including protected convictions within the meaning of Article 2A of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, fall to be disclosed in a Criminal Record Certificate (“the multiple convictions rule challenge”).

ii) Second, the Claimants challenged the retention on the Police National Computer of data concerning their convictions of the s. 1 offence (“the retention challenge”).

iii) Third, the Claimants challenged the compatibility of the s. 1 offence itself with Article 14 read with Article 8 ECHR, asking the court to make a declaration of incompatibility (“the criminalisation challenge”).

10

On 2 March 2018, the Divisional Court allowed the claim in respect of Ground 1, ( [2018] EWHC 407 (Admin)), finding that the multiple conviction rule resulted in an interference with the Claimants' rights that was neither in accordance with the law nor necessary in a democratic society. The court dismissed the claim in respect of the other grounds on which permission had been granted and refused permission on all other grounds.

11

On 26 March 2018, the same Divisional Court granted the Second Defendants permission to appeal in respect of Ground 1 and refused the Claimants permission to appeal in respect of all grounds sought. Upon the handing-down of the judgment of the Supreme Court in Re Gallagher and R (P, G and W) v Secretary of State for Justice and another [2019] 2 WLR 509; [2020] 2 AC 185 on 30 January 2019, by which the multiple convictions rule was held to be a disproportionate means of meeting its objective, the Second Defendants withdraw their appeal against the judgment of the Divisional Court. It should therefore be noted that this litigation has already been successful in an important respect.

12

On 11 June 2019, Rafferty and King LJJ granted the Claimants permission to appeal against the refusal of permission to apply for judicial review in respect of the retention challenge and the criminalisation challenge. In a judgment reported at [2020] EWCA Civ 130, the Court of Appeal (Bean, King and Hickinbottom LJJ) dismissed the appeal in respect of the latter but allowed it in respect of the retention challenge, granting permission to apply for judicial review and remitting the matter to be heard by a fresh Divisional Court.

13

It is in those circumstances that the matter now before this court is a challenge to the First Defendant's policy called Deletion of Records from National Police Systems (v2.1), (“the NPCC Policy”). By the NPCC Policy, the Claimants' convictions for the s. 1 offence will remain recorded on the PNC until the convicted individual would reach the age of one hundred. This is conveniently, if not quite accurately, referred to as the 100-year rule.

The relevant legal and policy provisions

14

As originally enacted, s. 1(1) of the Street Offences Act 1959 provided as follows.

“(1) It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.”

15

As amended, it now reads:

“(1) It shall be an offence for a person aged 18 or over (whether male or female) persistently to loiter or solicit in a street or public place for the purpose of prostitution.”

16

It is of note that that the offence can no longer be committed by someone under 18 and that “persistence” (two or more offences in a period of 3 months) is now required.

17

S. 1 (2) provides for the sentence to be imposed for these offences:

“(2) A person guilty of an offence under this section shall be liable on summary conviction to a fine of an amount not exceeding level 2 on the standard scale, or, for an offence committed after a previous conviction, to a fine of an amount not exceeding level 3 on that scale.”

18

National police records are provided for by s. 27 of the Police and Criminal Evidence Act 1984 (“PACE 1984”), as amended. The relevant parts of that section provide as follows:

“(4) The Secretary of State may by regulations make provision for recording in national police records convictions for such offences as are specified in the regulations.

(4A) In subsection (4) “conviction” includes—

(a) a caution within the meaning of Part 5 of the Police Act 1997; and

(b) a reprimand or warning given under section 65 of the Crime and Disorder Act 1998.”

19

The Regulations made under that provision are the National Police Records (Recordable Offences) Regulations 2000 [SI 2000/1139] (“the Recordable Offences Regulations”). By Regulation 3, the Recordable Offences Regulations provide in relevant part as follows.

(1) There may be recorded in national police records—

(a) convictions for; and

(b) cautions, reprimands and warnings given in respect of,

any offence punishable with imprisonment and any offence specified in the Schedule to these Regulations.

20

By paragraph 50 of the Schedule to the Recordable Offences Regulations, the s. 1 offence is a specified offence for the purposes of s. 27(4) PACE 1984.

21

The purpose...

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