R (on the application of XX) v Secretary of State for the Home Department and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 12 December 2014 |
| Neutral Citation | [2014] EWHC 4106 (Admin) |
| Docket Number | Case No: CO/455/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 December 2014 |
[2014] EWHC 4106 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Dingemans
Case No: CO/455/2014
Jessica Simor QC (instructed by Irwin Mitchell) for the Claimant
Jonathan Moffett (instructed by The Treasury Solicitor) for the First and Fourth Defendants
Jeremy Johnson QC and Charlotte Ventham (instructed by Legal Services of South Yorkshire Police) for the Second and Third Defendants
Hearing dates: 6 and 7 November 2014
Introduction
These claims raise issues relating to the legality of arrangements made by the police in South Yorkshire for the retention and disclosure of information and data relating to the Claimant, who is a convicted sex offender. Schemes and guidance under which information is held and provision for disclosure is made by the police include: (1) the Child Sex Offender Disclosure Scheme ("the CSOD scheme"); (2) the Guidance on the Management of Police Information. The phrase "Management of Police Information" is often referred to in the evidence as "MoPI"; and (3) MAPPA Guidance. MAPPA means Multi-Agency Public Protection Arrangements. The MAPPA Guidance is issued pursuant to section 325 of the Criminal Justice Act 2003 ("the 2003 Act").
The First Defendant, the Secretary of State for the Home Department, is responsible for having set up the CSOD scheme, which has been adopted by all the Chief Constables in England and Wales. The Secretary of State for the Home Department has also issued a Code of Practice for the Management of Police Information pursuant to statutory powers.
The Claimant is resident in the South Yorkshire police area, and the Second Defendant, the Chief Constable of South Yorkshire ("the Chief Constable") and police officers for whom he is responsible hold relevant data relating to the Claimant.
The Third Defendant, the Association of Chief Police Officers ("ACPO"), was responsible for the MoPI Guidance, which was produced on its behalf by the National Policing Improvement Agency.
The Fourth Defendant, the Secretary of State for Justice, has statutory responsibilities for MAPPA and has issued MAPPA Guidance.
The Claimant
It has been " emphasised on many occasions that cases of this kind turn heavily on their particular facts", see paragraph 5 of R(Catt) v ACPO and others [2013] EWCA Civ 192; [2013] 1 WLR 3305. I therefore set out factual matters relating to the Claimant.
The Claimant has five convictions for indecent assault. The first two of those convictions were assaults on a female aged under 14, and he was sentenced to 2 years concurrent on each count. The relevant circumstances are that in the period leading up to March 1991 the Claimant befriended a mother bringing up three children, including the victim who was aged 8. The assaults had taken place when the Claimant was babysitting the children. The Claimant was released from prison in 1993.
After his release from prison the Claimant offended again. The Claimant appears to have lured young girls to his caravan in Lincolnshire, provided them with drugs and alcohol, and sexually assaulted them. He pleaded guilty to the offences and was sentenced to 4 1/2 years imprisonment. The Sheffield Star reported these matters, and the Claimant was assaulted by someone who had read about them. It appears that the person who had assaulted the Claimant received a caution for that offence.
The Claimant has been the subject of MAPPA procedures. In 2009 it was discovered that the Claimant was spending time with a 9 year old child who was not related to him. The mother of the child was not aware of the Claimant's history, although it appears that there were rumours circulating in the community. The Claimant was asked by the police to disclose his history to the mother, but he refused to do so. The police therefore decided to disclose the relevant history so that the child's mother could take steps necessary to ensure the protection of her child.
On 21 January 2014 the Claimant reported to the police that the word " paedo" had been sprayed on his car and house window. The police responded to this, and have made a direction that there should be a "fast response to all calls" from the Claimant.
On 3 February 2014 a person who owned a property in which he was living with his wife and children which was near to the Claimant asked the police to know about the Claimant's record for " peace of mind". It appears that the person had received an anonymous letter about the Claimant, and had no relevant knowledge of the Claimant's history. He also reported that he had found the Claimant to be " polite and courteous". The Claimant did not have any unsupervised contact with that person's children. It was noted that there appeared to be " no outstanding safeguarding issues or concerns in relation to the … children therefore no disclosures to any persons are necessary". As a result no disclosures were made about the Claimant to the person who had made the request.
The Claimant made an application to be exempted from the notification requirements imposed under the Sexual Offences Act 2003 which, if it had been successful, would have removed him from MAPPA. On 6 May 2014 the Claimant's application to be removed from MAPPA was refused. It was noted that he had not fully engaged with relevant authorities and was assessed as needing to remain subject to notification requirements. The Claimant did not appeal against this decision.
In circumstances where the Claimant has been reasonably judged to be a person constituting such a risk that he requires to be subject to notification requirements and therefore to MAPPA, his current complaints about the retention of his data by the police are very likely to be academic. It is the academic nature of this part of the Claimant's complaints that has, in my judgment, been responsible for the changing focus of the Claimant's complaints about what is being challenged. This is shown by the fact that the Claimant originally complained about the retention of a list of his convictions, but he no longer maintains that complaint. Further complaint was made on behalf of the Claimant about information retained on the Police National Computer ("PNC"). It then transpired that the information on the PNC was not extensive, and the focus of the complaint shifted to a complaint about the data about the Claimant which must be held elsewhere.
The data held about the Claimant by the police
As a result of changes to the focus of the Claimant's case, no requests for details of the information held by the police about the Claimant have been made. However it is apparent from the materials before me that relevant information held by officers in the South Yorkshire police area includes: his convictions; details of the circumstances giving rise to his convictions; the circumstances giving rise to the disclosure of information about the Claimant in 2009; details of the attack on the Claimant's property in 2014 and the requirement to provide a fast response to the Claimant's calls; and the details relating to the refusal by the police of the request to provide disclosure about the Claimant in 2014.
It might be noted that there are mechanisms available to the Claimant to determine what information is being held about him by the police, see Chief Constable of Humberside Police and others v Information Commissioner [2009] EWCA Civ 1079; [2010] 1 WLR 1136. If it is proposed to challenge the retention of specific items of information it will be necessary for the Claimant to obtain details of the relevant information, and then identify his complaint. However this lack of specificity does not prevent the Claimant from making the general complaints about the lack of legality of the schemes providing for the retention and disclosure of data relating to him that he has made below.
The Claimant's claims
As noted above the focus of the Claimant's claims has changed during the progress of this case, and I am very grateful to Ms Simor QC, Mr Moffett and Mr Johnson QC for the refinement of the issues in their helpful oral and written submissions. The original focus of the Claimant's claims, when issued, was in respect of the retention and disclosure of the details of the Claimant's convictions for various sexual offences ("conviction data"). Indeed by letter dated 13 April 2013 solicitors instructed by the Claimant wrote to the First Defendant challenging the legality of the retention of the Claimant's convictions on the PNC until he reaches the age of 100. The claim was forwarded to the Third Defendant who wrote disputing it.
Further correspondence took place. Proceedings were issued seeking orders quashing: the issuing of guidance to govern the CSOD; the MAPPA Guidance; and the decision to retain data relating to the Claimant's convictions on the PNC. The proceedings were defended.
The Claimant claims that the schemes under which the police retain and disclose his data engage article 8 rights, and that the schemes are either not in accordance with the law because they are arbitrary, or are disproportionate and therefore cannot be justified for the same reason.
It is also said that amendments made to the CSOD scheme following the judgment of the Divisional Court in R(X) v Secretary of...
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