R v MB
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker |
| Judgment Date | 09 February 2012 |
| Neutral Citation | [2012] EWHC 147 (Admin) |
| Docket Number | Case No: CO/7482/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 February 2012 |
[2012] EWHC 147 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMIN COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
Mr Justice Kenneth Parker
Case No: CO/7482/2011
Hugh Southey QC and Nick Armstrong (instructed by Stephensons Solicitors LLP) for the Claimant
Mr Ian Mullarkey (instructed by the Legal Services Department, Greater Manchester Police) for the 1st Defendant
Mr Jason Coppel (instructed by The Treasury Solicitor) for the 2nd Defendant and Interested Party
Hearing date: 6 December 2011
The Claimant, who is a 20 year old student, challenges under the European Convention on Human Rights ("the ECHR") an Enhanced Criminal Records Certificate ("ECRC") which was issued to him by the Criminal Records Bureau ("CRB"), an executive agency of the Secretary of State for the Home Department (the Second Defendant in this claim) on 6 December 2010. The ECRC, for which the Claimant had applied in order to facilitate his admission to a sports studies degree course, contained details of a warning for the theft of two bicycles which he had incurred on 22 July 2002 when he was 11 years old. The warning had been given by the Greater Manchester Police, the First Defendant in this claim.
The warning had previously been "stepped down" in 2009 under procedures then operated but had been later reinstated following the decision of the Court of Appeal in Chief Constable of Humberside Police v Information Commissioner [2009] EWCA Civ 1079 [2010] 1WLR 1136. It should also be observed that since the warning issued about ten years ago the Claimant has not been subject to any further criminal proceedings of any kind and indeed his conduct appears to have been exemplary.
Pursuant to Section 113B of the Police Act 1997 ("the 1997 Act") ECRCs are provided by the CRB on application by an individual who is seeking appointment to a position which involves regularly caring for, training, supervising or being in sole charge of persons aged under 18. An ECRC must include details of any convictions, cautions, warnings and reprimands recorded on the Police National Computer ("PNC"): see Section 113B(3)(a), Section 113B(9) and Section 113A(6). (The reference in Section 113A (formerly Section 113 of the Police Act 1997) to a caution is to be construed as including warnings and reprimands by virtue of Section 65(9) of the Crime and Disorder Act 1998 and Section 17(2)(a) of the Interpretation Act 1978).
A warning can be administered to a child or young person pursuant to Section 65 of the Crime and Disorder Act 1998 where inter alia the child or young person admits to a constable that he has committed an offence, has not previously been convicted of an offence and the constable is satisfied that it would not be in the public interest for the offender to be prosecuted. The warning must be given in the presence of an appropriate adult and must follow guidance promulgated by the Secretary of State. The giving of a warning is a private procedure in the sense that there is no public hearing in a criminal court where a conviction is recorded and any appropriate sentence is publicly imposed.
The Claimant contends that the requirement of the 1997 Act that warnings be disclosed on ECRCs is in breach of his right to respect for private life under Article 8 ECHR. He does not contend that the relevant provisions of the 1997 Act can be interpreted pursuant to Section 3 of the Human Rights Act 1998 so as to avoid the breach of which he complains. Therefore he seeks a declaration of incompatibility of provisions of the 1997 Act. In addition the Claimant seeks a declaration that the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 ( SI 1975/1023) ("the Order") is ultra vires. The effect of the Order is to remove in certain circumstances certain of the protections which apply to spent convictions and cautions pursuant to the Rehabilitation of Offenders Act 1974 ("the ROA").
The effect of the Order is in particular that applicants for certain categories of employment, including teaching positions, are not protected from any consequences which may flow from failing to reveal details of spent convictions, cautions, warnings and reprimands when asked to do so by a prospective employer. The Claimant has not, at least in the recent past, applied for any employment to which the Order might apply.
Challenge to Disclosure under the 1997 Act
I begin with the challenge to disclosure under the 1997 Act because the Defendants accept that following R(L) v Commissioner of Police for the Metropolis [2009] UKSC 3 [2010] 1 AC 410 (" L") the provisions of the 1997 Act requiring disclosure of warnings on CRCs and ECRCs may interfere with the right to respect for private life under Article 8 ECHR. In L Lord Hope of Craighead DPSC explained the legislative history of the disclosure provisions and set out the effect of the current legislation as follows:
"6. Part V of the 1997 Act provided for the issue of three types of certificates. Section 112 dealt with the issue of a criminal conviction certificate. This is a certificate which gives prescribed details of every conviction of the applicant which is recorded on central records, or states that there is no such conviction. Section 113 dealt with the issue of a criminal record certificate. This is a certificate which gives the prescribed details of every conviction within the meaning of the Rehabilitation of Offenders Act 1974 and a caution, or states that there is no such matter. A certificate of this kind may only be issued where the application is countersigned by a registered person and is accompanied by a statement by that person that the information is required for a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 has been excluded by an order of the Secretary of State. Section 115 dealt with the issue of an enhanced criminal record certificate.
7. Sections 113 and 115 were repealed with effect from 6 April 2006 and replaced by sections 113A and 113B, inserted in the 1997 Act by section 163(2) of the Serious Organised Crime and Police Act 2005. This case concerns an ECRC that was issued under section 115 before it was repealed. To avoid confusion I shall concentrate on the wording of that section.
8. Section 115, as amended by the Criminal Justice Act 2003 and so far as material for present purposes, provided:
"(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) or (4), or (b) for a purpose relating to any of the matters listed in subsection (5) …
(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.
(4) A position is within this subsection if – (a) it is of a kind specified in regulations made by the Secretary of State, and (b) it involves regularly caring for, training, supervising or being in sole charge of persons aged 18 or over."
In subsection (5) a list was given of applications for various gaming and lotteries licences, for registration for child minding or providing day care and the placing of children with foster parents. This list has been extended by subsequent amendments to include, among others, applications for registration as a social worker or a social service worker and registration as a teacher under section 3 of the Teaching and Higher Education Act 1998.
9. Section 115(10) provided that the expressions "central records", "exempted question" and "relevant matter" had the same meaning as in section 113, subsection (5) of which was in these terms:
"In this section – 'central records' means such records of convictions and cautions held for the use of police forces generally as may be prescribed; '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); 'relevant matter' means – (i) a conviction within the meaning of the Rehabilitation of Offenders Act 1974, including a spent conviction, and (ii) a caution."
10. Sections 115(6) and 115(7) provided as follows:
"(6) 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.
(7) 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."
These provisions have been re-enacted in virtually the same terms by sections 113B(3) and 113B(4) which were...
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