R ( B) v Secretary of State for the Home Department, (Metropolitan Police Commissioner (Interested Party))
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 24 March 2006 |
| Neutral Citation | [2006] EWHC 579 (Admin) |
| Date | 24 March 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2295/2005 |
[2006] EWHC 579 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Munby
Case No: CO/2295/2005
Mr Dan Squires (instructed by Hereward & Foster) for the claimant
Mr Steven Kovats (instructed by the Treasury Solicitor) for the defendant
The interested party was neither present nor represented
Hearing date: 15 February 2006
Judgement
This is an application for judicial review which raises a question as to the meaning and effect of section 117 of the Police Act 1997 in relation to an enhanced criminal record certificate ("ECRC") issued under section 115. It is convenient, before I go any further, to set out the legal framework.
The legal framework
Under the heading "Enhanced criminal record certificates" section 115 of the Police Act 1997 provides, so far as material for present purposes, as follows:
"(1) The Secretary of State shall issue an enhanced criminal record certificate to any individual who – (a) makes an application under this section in the prescribed manner and form countersigned by a registered person, …
(2) An application under this section must be accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked – (a) in the course of considering the applicant's suitability for a position (whether paid or unpaid) within subsection (3) …
(3) A position is within this subsection if it involves regularly caring for, training, supervising or being in sole charge of persons aged under 18."
Section 113(5) defines an "exempted question" as follows:
""exempted question" means a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) has been excluded by an order of the Secretary of State under section 4(4)."
Section 4(2) of the Rehabilitation of Offenders Act 1974 provides that:
"Subject to the provisions of any order made under subsection (4) below, where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority –
(a) the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and
(b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question."
It is common ground that the relevant order has been made by the Secretary of State under section 4(4) of the 1974 Act.
Section 115(6) of the Police Act 1997 provides that:
"An enhanced criminal record certificate is a certificate which –
(a) gives –
(i) the prescribed details of every relevant matter relating to the applicant which is recorded in central records, and
(ii) any information provided in accordance with subsection (7), or
(b) states that there is no such matter or information."
Section 115(7) provides that:
"Before issuing an enhanced criminal record certificate the Secretary of State shall request the chief officer of every relevant police force to provide any information which, in the chief officer's opinion –
(a) might be relevant for the purpose described in the statement under subsection (2), and
(b) ought to be included in the certificate."
Section 117, which is at the heart of the present case, is headed "Disputes about accuracy of certificates". It provides that:
"(1) Where an applicant for a certificate under any of sections 112 to 116 believes that the information contained in the certificate is inaccurate he may make an application in writing to the Secretary of State for a new certificate.
(2) The Secretary of State shall consider any application under this section; and where he is of the opinion that the information in the certificate is inaccurate he shall issue a new certificate."
The functions of the Secretary of State are, of course, performed by the Criminal Records Bureau ("CRB").
The general scheme of the legislation was described by Lord Woolf CJ in R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1968, [2005] 1 WLR 65, at para [18] as follows:
" … it is useful to note the following significant aspects of the statutory scheme involving ECRCs.
(i) The whole process of obtaining an ECRC is initiated by the person to whom the certificate will relate. The certificate is for his purposes to enable him to obtain employment which, at least in practical terms, will not be available to him unless he obtains a certificate.
(ii) The certificate will only be seen by the applicant and his prospective employer.
(iii) The applicant has the opportunity to persuade the Secretary of State to correct the certificate.
(iv) The Chief Constable is under a duty to provide the information referred to in section 115(7). This is subject to the requirement that the information might be relevant and ought to be included in the certificate. What might be relevant and what ought to be included is a matter for the opinion of the Chief Constable.
(v) The applicant is in a position to provide additional information if he wishes, whether in conflict with the certificate or not, to the prospective employer and it is the prospective employer who will make the decision as to whether he should or should not be employed."
The heart of the decision in R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1968, [2005] 1 WLR 65, is to be found in Lord Woolf CJ's judgment at paras [36]–[37]:
"[36] … Having regard to the language of section 115, the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure.
[37] This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need."
The claimant relies on Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. I am quite content to assume that the disclosure of information such as was disclosed in this case engages Article 8. As Dyson J said in R v Local Authority and Police Authority in the Midlands ex p LM [2000] 1 FLR 612 at pages 620 and 625:
"The disclosure, if made, would obviously interfere with his right to a private life … Disclosure of allegations of child sex abuse is on the face of it a substantial interference with a person's right to a private life: see R v Chief Constable of North Wales Police ex p Thorpe per Buxton J at 416B–C, approved by the Court of Appeal at 429B".
Moreover, it may well be, notwithstanding Mummery LJ's reservation of the point in R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1968, [2005] 1 WLR 65, at para [57], that Article 8 is also engaged inasmuch as disclosure in a case such as this can impact very damagingly on someone's employment prospects: see the later decision of the Strasbourg court in Sidabras v Lithuania (2004) 42 EHRR 104 at para [47]. I am prepared to assume as much, though without deciding the point.
But this does not necessarily take the claimant very far. In the first place, it is clear that the statutory scheme is Convention compliant. As Lord Woolf CJ said in R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1968, [2005] 1 WLR 65, at para [20]:
"It is helpful to note that while it is accepted by both parties that the information which is included in the ECRC might offend against article 8(1), it is not suggested that the legislation itself contravenes article 8. No doubt this is because disclosure of the information contained in the certificate would be "in accordance with the law" and "necessary in a democratic society", in the interests of public safety and for the prevention of crime and for the protection of the rights and freedoms of others. This country must, through its legislature, be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so, without those in their care coming to harm if they are under the age of 18 or vulnerable adults."
Moreover, the role that Article 8 will play in the individual case is limited. As Lord Woolf CJ said at para [41]:
" … how can the Chief Constable's decision to disclose be challenged under article 8? As already indicated, the Chief Constable starts off with the advantage that his statutory role is not in conflict with article 8, because the statute meets the requirements of article 8(2). It follows also, that as long as the Chief Constable was entitled to form the opinion that the information disclosed might be relevant, then absent any untoward circumstance which is not present here, it is difficult to see that there can be any reason...
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