R (H & L) v A City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Lord Justice Hooper,Lord Justice Pill |
| Judgment Date | 14 April 2011 |
| Neutral Citation | [2011] EWCA Civ 403 |
| Docket Number | Case No: C1/2010/1018 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 April 2011 |
[2011] EWCA Civ 403
Lord Justice Pill
Lord Justice Hooper
and
Lord Justice Munby
Case No: C1/2010/1018
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
LEEDS DISTRICT REGISTRY
His Honour Judge LANGAN QC (Sitting as a Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Stephen Cragg (instructed by Howells) for the Appellants
Mr Timothy Pitt-Payne QC (instructed by Director of Legal Services) for the Respondent
Hearing date: 25 March 2011
This is an appeal from a judgment and order of His Honour Judge Langan QC sitting as a Judge of the High Court in the Administrative Court on 12 March 2010: [2010] EWHC 466 (Admin).
The dispute focuses on the important question of when and how it is proper for a local authority to make disclosure to someone's commercial contacts of the fact that he is a convicted sex offender.
Background
The claimants (appellants in this court) are H and L. H is a convicted sex offender. He also has a more recent conviction for dishonesty, in failing to disclose his earlier conviction when applying for a job. L is his partner. She has no convictions.
The background is described in some detail in Judge Langan's judgment. For present purposes I can do no better than to set out part of what he said (paras [6]–[8]):
"H and L are both very severely disabled. They have been in a relationship since 1992 … Both H and L have been assessed as having substantial needs under the Fair Access to Care Services eligibility framework for adult social care. Both receive weekly direct payments, which they use to employ personal assistants. H has two male personal assistants, both of whom have been in his employment for several years: neither of these carers has children. L has a female personal assistant who is at present on maternity leave: the woman who is replacing that personal assistant over the leave period does not have children.
H and L have for many years been active in the disability movement. I think that it can fairly be said that their involvement has had a twofold nature, being both philanthropic and economic. It is philanthropic in that they, or at any rate H, belong or have belonged to a number of representative or consultative bodies dealing with disability issues. It is economic, in that H and L run a company which has sought and obtained contracts from universities and other public bodies.
In 1993 H was convicted of indecent assault on a seven-year old boy. The information which has been provided by [the local authority], and which is not disputed by H and L, is that the boy was blind, that he was a member of a family which H had befriended, and that the offence was a penetrative one which involved oral sex. H denied the charge, but was found guilty and was sentenced to two years imprisonment. He has maintained to this day that he was the victim of a miscarriage of justice, and L concurs in this view."
The facts
In late March 2009, the local authority received a letter from another local authority drawing attention to H's conviction in 1993 and saying that he was facing trial for a similar offence. The local authority's reaction was to convene a strategy meeting on 17 April 2009. Although he was not so described in the minutes, the effective chairman of the meeting was X, the service manager of the local authority's safeguarding children service. The strategy meeting was attended by two other officers of the local authority, two representatives of a local university, a representative of the NHS and two police officers from the local police public protection unit. According to the witness statement X subsequently prepared for these proceedings, the purpose of the meeting was to "develop a better understanding of H's activities … and develop an action plan for further investigation."
The meeting was told of H's pending prosecution and that the trial date had been set for 26 June 2009; in the event it did not take place until early 2010. X is recorded as saying that:
"even if found not guilty by the court, we would still be required to make a judgement on the risk that [H] posed and mitigate any risk. His past offences would affect this decision greatly. He appears to have met his victims through work with their parents."
The meeting was told that H had associations with numerous organisations and featured on consultative bodies and various committees; he ran his own company with L and worked with disabled adults throughout the country; the university had placed four adult social workers with him over the last two years; he had placed numerous bids for research funding and was associated with various bodies (which were named); he had worked for different universities in relation to people with disabilities and was currently advocating for benefits and services for disabled asylum seekers. At the end of the meeting it was reconvened for 21 May 2009. In the event the next strategy meeting did not take place until 15 June 2009. By then the disclosures of which complaint is made had already taken place.
The minutes record the "Decisions" of the meeting of 17 April 2009 as follows:
"• [The] University to provide details of all [H's] known contacts to [X] who will contact these organisations to make a disclosure and acquire further contacts if known.
• [X] to contact General Social Care Council.
• [The] University to cease their employment of [H] and his company.
• [The] University to communicate their decision to [H] following seeking legal advice.
• [The] University to feedback to [X].
• Primary Care Trust not to use [H] or his company for any consultancy work.
• PCT and Community Care (with legal advice) to talk with … about how to exclude [H] from their board.
• PCT to inform other local NHS bodies of the concerns.
•… to be informed of concerns.
• Reconvened meeting to be arranged."
I draw attention to the word "all" in the first bullet-point. The minutes then continue:
"[X] gave a clear recommendation that [H] be asked to stand down from all bodies and committees he is involved with immediately given that his level of denial of his serious offence makes him a highly untrustworthy individual. Should he refuse to stand down then legal advice to be sought and consideration be given to seeking an injunction.
[X] highlighted the moral legal position and the obligation to fulfil a duty to safeguard children and the sharing of information was justified in protecting those children."
Again, I draw attention to the word "all" in the first paragraph.
What exactly took place following the meeting on 17 April 2009 is not entirely clear. Precise chronological detail is lacking, no doubt because, as X had to acknowledge in his witness statement, he did not keep notes of the telephone calls he made. That, I have to say, was a grave omission, given the seriousness of the matter and the crucial significance of what was being done – all of it, at this stage, behind H's back.
According to X's witness statement he made a number of telephone calls to various organisations. He says that there were nine in all who were informed: the local authority's disability service, the university, the PCT, the Refugee Council, the General Social Care Council and four other agencies in the voluntary or third sector. Precisely when these calls were made we do not know, though such exiguous documents from the period immediately following the meeting on 17 April 2009 as we have been provided with show that the process was under way by 23 April 2009. Indeed, on 27 April 2009 X followed up his telephone call to one of the agencies with a letter which, I note, said that:
"As you know I have serious concerns about [H]'s involvement in a range of consultative and representative bodies as well as his commissioned work with his company …, which he runs with his partner [L]. [H] derives a status from his involvements and may serve to convince other people that he is a trustworthy individual. Furthermore he may as a result gain access to parents and ultimately their children."
By 18 May 2009 another of the agencies that X had telephoned was writing to the local authority to confirm their earlier conversation. The writer said "I understand that [H] is unaware of your work at the moment but will be informed later this week." That in fact did not happen. There was a meeting on 20 May 2009 between representatives of the local authority, H, L and H's solicitor to discuss the way ahead. It is common ground that they were not told that the disclosures which are now challenged had already been made.
On 29 May 2009 the local authority wrote to H's solicitor and, separately, to L. It explained what it proposed to do in the future and, in response to questions they had raised at the meting on 20 May 2009, explained the basis upon which it was entitled to share information with others. Neither letter disclosed the fact that the disclosures now being challenged had already been made (though the letter to H's solicitor referred to certain other disclosures) and each referred, tendentiously and misleadingly, to the right of the local authority "to disclose information in the way we intend."
In fact, H and L had by then discovered some of what had happened, having been told on 27 May 2009 by two service users that the local authority had given them details of H's conviction and of the pending criminal proceedings. This was followed by a letter to L dated 28 May 2009 from one of the agencies to which the local authority had made disclosure, revealing that fact – the first H and L knew about it – and stating that the agency had decided to withdraw from working with their company "with immediate effect." A similar letter from...
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