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

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD SCOTT,LORD NEUBERGER,LORD BROWN,LORD SAVILLE,LORD HOPE
Judgment Date29 October 2009
Neutral Citation[2009] UKSC 3

[2009] UKSC 3

THE SUPREME COURT

Michaelmas Term

On appeal from: [2007] EWCA Civ 168

before

Lord Hope, Deputy President

Lord Saville

Lord Scott

Lord Brown

Lord Neuberger

R (on the application of L) (FC)
(Appellant)
and
Commissioner of Police of the Metropolis
(Respondent)

Appellant (L)

Stephen Cragg

Charlotte Kilroy

(Instructed by John Ford Solicitors)

Respondent:

Fiona Barton

Matthew Holdcroft

(Instructed by Metropolitan Police Directorate of Legal Services)

Intervener: (Secretary of State for the Home Department)

James Eadie QC

Jason Coppel

(Instructed by Treasury Solicitors)

Intervener: (Liberty)

(Written submissions only from Timothy Pitt Payne)

LORD HOPE
1

This case raises important issues about the meaning and application in practice of section 115(7) of the Police Act 1997 as to the information that is to be provided by the chief officer of a police force to the Secretary of State for inclusion in an enhanced criminal record certificate ("ECRC"). The section in which this subsection appears provides for enhanced criminal record checks to be carried out in various specified circumstances, such as where people are applying to work with children or vulnerable adults, for various gaming and lotteries licences, for registration for child minding and day care or to act as foster parents or carers. The check is enhanced in the sense that it will involve a check with local police records as well as the centralised computer records held by the Criminal Records Bureau. As well as information about minor convictions and cautions, it will reveal allegations held on local police records about the applicant's criminal or other behaviour which have not been tested at trial or led to a conviction. If the information satisfies the tests that section 115(7) lays down, it must be given to the Secretary of State and the Secretary of State for his part must include it in the ECRC.

2

The question is whether, as it has been interpreted, section 115(7) of the 1997 Act is compatible with the applicant's right to respect for his or her private life under article 8 of the European Convention on Human Rights. The leading authority on the meaning and effect of the subsection is R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1068; [2005] 1 WLR 65. Lord Woolf CJ said in para 36 that, having regard to the language of section 115(7), 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 disclosure. In para 37 he added these words:

"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."

In para 41 he said that, as long as the chief constable was entitled to form the opinion that the information might be relevant, it was difficult to see that there could be any reason why the information that might be relevant ought not to be included in the certificate.

3

The problem with this approach, it is said, is that it involves a disproportionate interference with the article 8 right, bearing in mind the damaging effects to the applicant that the disclosure of such information might give rise to. It goes further than is reasonably necessary for the legitimate object of protecting children and vulnerable adults, and it fails to strike a reasonable balance between the interests of the applicant and the wider social interests that the system was designed to serve. The appellant seeks the quashing of the respondent's decision to disclose information about her on her ECRC, and a declaration that section 115(7) is incompatible with article 8. Alternatively she submits that section 115(7) should be read down so as to avoid the incompatibility.

The legislation

4

Part V of the Police Act 1997 introduced a legislative framework for the disclosure of criminal records to meet a growing need for the release of such information for employment and other purposes. Previously the arrangements were governed by a series of Home Office Circulars on the Disclosure of Criminal Records. It was designed to implement proposals contained in the White Paper On the Record: The Government's Proposals for Access to Criminal Records for Employment and Related Purposes in England and Wales (1996) (Cm 3308) following an earlier Home Office Consultation Paper Disclosure of Criminal Records for Employment Vetting Purposes (1993) (Cm 2319). Among these proposals was one for enhanced criminal record checks, the details of which were set out in Part VI of the White Paper. It was already the practice, in certain particularly sensitive areas of work or licensing where vetting took place, for additional information to be provided from local police records. In the light of responses to the consultation paper it was proposed that information from local police records would be available for prospective employees, trainees and volunteers having regular, unsupervised, contact with children and young people under 18, and those applying for gaming, betting and lottery licences. It was noted in para 29 that the local records held by most police forces contain a range of information about individuals, including convictions and cautions for minor offences as well as information going beyond the formal particulars of convictions but which might nonetheless be of legitimate interest to those considering employing individuals for particularly sensitive posts.

5

Para 30 of the White Paper was in these terms:

"After very careful consideration the Government has concluded that it is right for such information to continue to be disclosed where there are particularly strong grounds for it, such as to combat the risk of paedophile infiltration of child care organisations. It accepts that stricter guidelines on what may be disclosed would provide reassurance to those subject to checking in this way and that they should normally be able to see any information of this kind which may be made available on them."

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 ...

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