R (on the application of W) v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Simon |
| Judgment Date | 08 July 2015 |
| Neutral Citation | [2015] EWHC 1952 (Admin) |
| Date | 08 July 2015 |
| Docket Number | Case No: CO/556/2014 |
| Court | Queen's Bench Division (Administrative Court) |
[2015] EWHC 1952 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Leeds Combined Court Centre
1 Oxford Row, Leeds, LS1 3BG
Mr Justice Simon
Case No: CO/556/2014
Mr Alex Offer (instructed by Lester Morrill Solicitors) for the Claimant
Ms Kate Gallafent QC (instructed by The Government Legal Department) for the Defendant
Hearing date: 23 June 2015
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
On 26 November 1982, when he was aged 16, the Claimant was convicted of an offence of assault occasioning actual bodily harm ('ABH'), contrary to s.47 of the Offences against the Person Act 1861. He was given a 2-year Conditional Discharge and bound over to keep the peace for 12 months.
Since then he has made a success of his life and has not been in any trouble with the law for 31 years. He now wishes to obtain a qualification teaching English as a second language; and in 2013 began a training course with a view to obtaining a Certificate in English Language Teaching to Adults. He applied through his College to the Disclosure and Barring Service ('DBS') for a criminal records certificate. That certificate showed his conviction for ABH, because the offence is one of the offences which must be disclosed under the current statutory regime for disclosure.
In this claim he seeks to challenge this disclosure regime. His case, in summary, is that it is a disproportionate interference with his right to respect for his private life under Article 8 of the European Convention on Human Rights ('ECHR') to require the disclosure of a conviction for ABH for which he received a conditional discharge so long ago, when he was a juvenile.
His claim does not involve a challenge to the lawfulness of a regime in which convictions and cautions for certain offences must always be disclosed; his complaint is that, what was a minor historic offence of ABH disposed of by a conditional discharge, should not be included in a category of mandatory disclosure.
The Defendant's response is that Parliament decided that ABH is a sufficiently serious offence that, irrespective of the sentence and the time that has passed since the commission of the offence, it is always potentially relevant to a prospective employer who is entitled to be aware of it before reaching a view as to a person's suitability for employment, for example, with children or vulnerable adults. The Defendant submits that it would be wholly inappropriate for the Court to go behind the judgement of Parliament; and that the view that ABH should be included in the list of offences which must always be disclosed was plainly proportionate.
In order to consider these arguments it is first necessary to consider the legislative and regulatory history and, in particular the circumstances which led to the changes in May 2013.
The legislative framework prior to May 2013
There are two limbs to the legislative framework: first, the Rehabilitation of Offenders Act 1974 ('the ROA 1974') and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 ('the 1975 Exceptions Order'), and secondly, the Police Act 1997.
The ROA 1974 and the 1975 Exceptions Order
The ROA 1974 provided, by sections 4(2) and 4(4) that, where a question seeking information about a person's previous convictions is put to him, the question is to be treated as not relating to spent convictions and the person is exempted from any liability by reason of a failure to acknowledge or disclose a spent conviction. This is subject to the terms of any order made by the Secretary of State.
It was pursuant to the power to make such an order that the Secretary of State made the 1975 Exceptions Order, which came into effect on the same day as the ROA 1974. This has the effect of dis-applying section 4(2) of the ROA 1974 where the question is asked by a person in the course of the duties of his office or employment in order to assess the suitability of the person to whom the question relates, amongst other matters, for admission to a number of specified professions. These include those which involve working with children and vulnerable adults, as well as the police, prison service and the probation service: see article 3(1) and Schedule 1 to the 1975 Exceptions Order.
The 1975 Exceptions Order reflected the view that, while it is generally desirable to effect the rehabilitation of offenders and help them into employment, the public must be adequately protected in certain respects. Until 29 May 2013, the effect of article 3(1) of the 1975 Exemption Order was that in those circumstances a person was not exempted from disclosure of any spent conviction or caution.
The Police Act 1997
Part V of the Police Act 1997 created the statutory scheme for the disclosure of criminal records by the police where such information was required for the purposes of assessing a person's suitability for employment in particular positions of trust or sensitivity, for example, working with children. The DBS (previously known as the Criminal Records Bureau) was required to issue a criminal record certificate to any individual who made an application in the requisite manner, which gave prescribed details of every 'relevant matter' relating to the applicant which was recorded in central records: see s.113A(3).
Under this regime, materially 'relevant matter' was defined as any conviction, caution, reprimand or warning, whether spent under the 1974 Act or not.
Reviews of the operation of the disclosure scheme
In September 2009 the Government appointed Sunita Mason (the Government's Independent Advisor on Criminality Information Management) to conduct a review of the retention and disclosure of records on the Police National Computer ('PNC') with a view to considering whether a more proportionate approach to disclosure could be taken. In a report published in March 2010, 'A Balanced Approach', she recommended, among other matters, that the information provided from the PNC in relation to employment checks should be filtered, using specific business rules so that employers were not given every piece of recorded information held on the PNC. This would have the result that 'certain old and minor records' were never disclosed (§91). A possible filtering system and 'the setting of business rules' were described at §§95–100 of the Report. The 6th recommendation in the report was that an expert panel be assembled to advise the Government on the filtering rules that should be applied to any new legislative arrangements.
This recommendation was accepted and the Independent Advisory Panel for the Disclosure of Criminal Records ('IAPDCR') was set up, chaired by Mrs Mason. This included representatives from a diverse group of interested parties with backgrounds in the law, reformation of offenders, child protection, policing, regulation and civil liberties.
In October 2010 Mrs Mason embarked on a Criminal Records review. She reported on Phase 1 of that review in February 2011 under the title, 'A Common Sense Approach'. The 5th recommendation in this Report was that the Government introduce 'a filter to remove old and minor conviction information from criminal records checks.' At page 27 of the Phase 1 review she considered some of the issues in relation to this filter. Having defined 'conviction information' as including conviction, caution, warning and reprimand the report continued:
There is a reasoned argument that, in many cases, the disclosure of conviction information that is both minor and disproportionate places an unnecessary burden on the lives of individuals. This is particularly so where the conviction became spent many years earlier and the individual poses no significant public protection risk to children or vulnerable adults …
I am therefore keen to ensure that the Government implements an appropriate form of filtering in the [Criminal Records Bureau] process which removes conviction information that is undeniably minor and which cannot be classed as anything other than old.
On page 28 of the Report she wrote:
To ensure ongoing public protection there should always be a significant number of conviction types that will always be disclosed. Examples of serious conviction headings and groups that may be included in this category are detailed below:
Assault and Violence Against the Person
Affray, Riot and Violent Disorder
Aggravated Criminal Damage
Arson
Drink and Drug Driving
Drug offences
Robbery
Sexual Offences.
On the same page she noted that there was more than one opinion as to what constituted convictions for serious offences.
It may also be argued that low level convictions for violence such as common assault may become more important where the individual works with children or vulnerable adults.
She looked forward to the IAPDCR's assessment of each category of conviction.
In November 2011 Mrs Mason reported on Phase 2 of her Criminal Records review. It is unnecessary to refer to this report which primarily related to the management of records.
In December 2011 she reported to the Secretary of State for the Home Department and the Defendant in the light of the IAPDCR's deliberations. Although the panel unanimously agreed that 'old and minor convictions should be filtered out' and although it agreed certain principles which should be...
To continue reading
Request your trial
-
R P v The Secretary of State for the Home Department and Another
...regime for disclosure. 97 It is clear from the decision at first instance that W did not challenge the revised scheme itself: see [2015] EWHC 1952 (Admin); [2015] ACD 139. Thus, Simon J was solely concerned whether or not the disclosure scheme was compatible with W's Article 8 rights to a......
-
Gallagher’s (Lorraine) Application
...data could not be regarded as “being in accordance with the law”. R (On the Application of W) v Secretary of State for Justice [2015] EWHC (Admin) 1952 (8 July 2015) [49] Mr Coll placed a measure of reliance on this case. The issue to be determined arose out of the proposed disclosure of a ......
-
P (ap) Against The Scottish Ministers
...brief reference was made to a judgment of Simon J (as he then was) in R (on the application of W) v Secretary of State for Justice [2015] EWHC 1952 (Admin). In that case Simon J held that mandatory disclosure under Part V of the Police Act 1997, as amended, of a historical conviction for an......
-
R (on the applications of P and A) v Secretary of State for Justice and Another Chief Constable of Thames Valley Police (Interested Party)
...of Human Rights…" 68 Finally, I would refer to the decision of Simon J (as he then was) in R (W) v Secretary of State for Justice [2015] EWHC 1952 (Admin). In that case, the Claimant challenged the continuing disclosure requirement, under the present statutory regime, in respect of his conv......