R (L) v Commissioner of Police of the Metropolis (Secretary of State for the Home Department intervening)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Longmore,Lady Justice Smith,Lord Justice Moore-Bick
Judgment Date01 March 2007
Neutral Citation[2007] EWCA Civ 168
Date01 March 2007
Docket NumberCase No: 2006 0846 & 0846(Z) C1

[2007] EWCA Civ 168

[2006] EWHC 482 (Admin)

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)

Hon Mr Justice Munby

Before

Lord Justice Longmore

Lady Justice Smith and

Lord Justice Moore-Bick

Case No: 2006 0846 & 0846(Z) C1

Between
R (on the Application of L)
Appellant
and
Commissioner of Police for the Metropolis
Respondent
The Secretary of State for the Home Department
Intervenor

Miss BEVERLEY LANG QC and Ms CHARLOTTE KILROY (instructed by John Ford Solicitors) for the Appellant

Miss FIONA BARTON (instructed by The Directorate of Legal Services, Metropolitan Police) for the Respondent

RABINDER SINGH Esq QC (instructed by The Treasury Solicitor) for the Intervenor

Hearing date: 13th February 2007

Lord Justice Longmore
1

This appeal raises a question as to the permissible content of an enhanced criminal record certificate issued pursuant to section 115 of the Police Act 1997 in relation to someone who wishes to work with children under 18. Part V of the Police Act 1997 (“the 1997 Act”) is headed “Certificates of Criminal Records &c”. Section 112 relates to criminal conviction certificates, section 113 relates to criminal record certificates (thus including records of eg cautions) and section 115 then deals with enhanced criminal record certificates (“ECRCs”).

2

The legal framework

Section 115 of the 1997 Act 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 … .”

3

Section 113(5) has already defined 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.

4

Section 115(6) of the 1997 Act provides:—

“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) then 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 … .”

It is this provision that is central to this appeal.

5

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 which Lord Woolf CJ described the general scheme of the legislation 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.”

6

The heart of the decision in R (X) 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.”

7

The facts

The claimant, L, is the mother of a boy, X, who was born on 21st April 1989. He has a much older sister, Y. The family has come to the attention of both the police and social services. Because of concerns about X, the local authority arranged an initial Child Protection Conference which took place on 29th January 2002. The social worker reported concerns that X “may be exposed to drugs” and that L was not prepared to work with social services. She expressed the view that X “has no clear boundaries at home or at school” and reported that:—

“The general view of all the professionals is that [X] is at risk within his family because [L] has very little control of his behaviour and knowledge of his whereabouts for the large part of the day.”

The Conference received detailed reports of the numerous occasions between August 1999 and December 2001 when X had been reported missing. It also received a detailed report from his school of his poor attendance and poor behaviour at school. The Conference was told that X was currently excluded from school for having assaulted his teacher. The teacher is quoted in the minutes of the Conference as reporting X to be out of control. A police officer from the local Child Protection Team is recorded in the minutes as saying:—

“there has been a lot of involvement with [X] and his offending and being reported missing by [L]. It is felt that a lot of the issues stem from his sister [Y], around drugs and prostitution. [X] is a frequent visitor to his sister's home.”

Recording L's contribution to the discussion the minutes include this:—

“[L] refuses to accept that [X's] behaviour is a concern. [L] targeted [the social worker] as the cause of all her problems … . [L] said the root of the problem is the family being harassed by neighbours … . [L] feels that she is not being listened to and everyone else is the cause of the problems and she is not to blame.”

8

The decision of the Conference was that X's name should be placed on the Child Protection Register under the category of neglect. The minutes record fourteen specific recommendations, ten of them requiring action to be taken by the local authority. It is apparent that many of these were not implemented. There followed a first review Conference on 26th April 2002 and a second review Conference on 22nd November 2002 confirming that X should remain on the Child Protection Register.

9

By then X had been arrested, on 27th September 2002, for a robbery committed by him on 12th September 2002. Two days earlier, on 25th September 2002, he had been assaulted by his father, apparently provoked by X's behaviour in allowing unknown adults into their flat and running up a telephone bill of £490. X was charged on 2nd October 2002. He was convicted and sentenced on 31st March 2003 to three years' detention in a Young Offender Institution. He was released on 28th February 2004. In June 2003 his name was removed from the Child Protection Register.

10

From February to December 2004 L was employed by an employment agency which provides staff to schools. From March to July 2004 she worked as a midday assistant at a secondary school; her job required the...

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