R (L) v Commissioner of Police of the Metropolis (Secretary of State for the Home Department intervening)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby,MR JUSTICE MUNBY |
| Judgment Date | 19 March 2006 |
| Neutral Citation | [2006] EWHC 482 (Admin) |
| Docket Number | Case No: CO/6239/2004 Case No: CO/1734/2005 Case No: CO/6364/2004 |
| Date | 19 March 2006 |
| Court | Queen's Bench Division (Administrative Court) |
[2006] EWHC 482 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
BeforeMR JUSTICE MUNBY
Case No: CO/6239/2004 Case No: CO/1734/2005 Case No: CO/6364/2004
Ms Charlotte Kilroy (instructed by John Ford Solicitors) for the Claimant
Ms Fiona Barton (instructed by the Legal Department) for the Defendant Ms Beverley Lang QC (instructed by the National Association of Head Teachers) for the Claimant
Mr Peter Oldham (instructed by Beachcroft Wansbroughs) for the Defendant
These are applications for judicial review. Both raise questions as to the meaning and application of section 115 of the Police Act 1997. The two cases were heard separately but since they both raise essentially the same question of principle, and since the arguments in both cases traversed very much the same kind of ground, it is convenient to give a single judgment embracing both cases.
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."
The authoritative decision on the meaning and effect of section 115(7) is that of the Court of Appeal in R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1968, [2005] 1 WLR 65. In the course of argument I was referred to the decisions in the two earlier cases of R v Chief Constable of the North Wales Police ex p Thorpe [1999] QB 397 and R v Local Authority and Police Authority in the Midlands ex p LM [2000] 1 FLR 612. I propose to say little about them because, as Lord Woolf CJ put it in R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1968, [2005] 1 WLR 65, at para [36], "to apply them �, except with the utmost of caution, can be misleading."
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 claimants rely 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 these two cases 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 cases 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 claimants very far. In the first place, it is clear that section 115 itself 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...
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